1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 9 10 MAIKA FAUTEUX, CASE NO.: 2:20-cv-00925-DSF-RAO 11 Plaintiff, PROTECTIVE ORDER 12 v. 13 WALMART, INC. and DOES 1-10, Courtroom: District Judge: Hon. Dale S. Fischer 14 Defendants. Magistrate: Hon. Rozella A. Oliver Complaint Filed: March 12, 2019 15 Trial Date: December 7, 2021 16 17 1. A. PURPOSES AND LIMITATIONS 18 Discovery in this action is likely to involve production of confidential, 19 proprietary or private information for which special protection from public 20 disclosure and from use for any purpose other than prosecuting this litigation may 21 be warranted. Accordingly, the Court enters the following Protective Order. The 22 parties acknowledge that this Order does not confer blanket protections on all 23 disclosures or responses to discovery and that the protection it affords from public 24 disclosure and use extends only to the limited information or items that are entitled 25 to confidential treatment under the applicable legal principles. 26 /// 27 /// 28 1 B. GOOD CAUSE STATEMENT 2 This action is likely to involve medical records and information, personal 3 diaries or journals, trade secrets, customer and pricing lists and other valuable 4 research, development, commercial, financial, technical and/or proprietary 5 information for which special protection from public disclosure and from use for 6 any purpose other than prosecution of this action is warranted. Such confidential 7 and proprietary materials and information consist of, among other things, 8 confidential business or financial information, information regarding confidential 9 information (including information implicating privacy rights of third parties), 10 information otherwise generally unavailable to the public, or which may be 11 privileged or otherwise protected from disclosure under state or federal statutes, 12 court rules, case decisions, or common law. Accordingly, to expedite the flow of 13 information, to facilitate the prompt resolution of disputes over confidentiality of 14 discovery materials, to adequately protect information the parties are entitled to 15 keep confidential, to ensure that the parties are permitted reasonable necessary uses 16 of such material in preparation for and in the conduct of trial, to address their 17 handling at the end of the litigation, and serve the ends of justice, a protective order 18 for such information is justified in this matter. It is the intent of the parties that 19 information will not be designated as confidential for tactical reasons and that 20 nothing be so designated without a good-faith belief that it has been maintained in a 21 confidential, non-public manner, and there is good cause why it should not be part 22 of the public record of this case. 23 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 24 SEAL 25 The parties further acknowledge, as set forth in Section 12.3, below, that this 26 Protective Order does not entitle them to file confidential information under seal; 27 Local Civil Rule 79-5 sets forth the procedures that must be followed and the 28 /// 1 standards that will be applied when a party seeks permission from the court to file 2 material under seal. 3 There is a strong presumption that the public has a right of access to judicial 4 proceedings and records in civil cases. In connection with non-dispositive motions, 5 good cause must be shown to support a filing under seal. See Kamakana v. City 6 and County of Honolulu,

(9th Cir. 2006), Phillips v. Gen. 7 Motors Corp.,

, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 8 Electrics, Inc.,

(E.D. Wis. 1999) (even stipulated protective 9 orders require good cause showing), and a specific showing of good cause or 10 compelling reasons with proper evidentiary support and legal justification, must be 11 made with respect to Protected Material that a party seeks to file under seal. The 12 parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL 13 does not—without the submission of competent evidence by declaration, 14 establishing that the material sought to be filed under seal qualifies as confidential, 15 privileged, or otherwise protectable—constitute good cause. 16 Further, if a party requests sealing related to a dispositive motion or trial, 17 then compelling reasons, not only good cause, for the sealing must be shown, and 18 the relief sought shall be narrowly tailored to serve the specific interest to be 19 protected. See Pintos v. Pacific Creditors Ass’n,

(9th Cir. 20 2010). For each item or type of information, document or thing sought to be filed 21 or introduced under seal in connection with a dispositive motion or trial, the party 22 seeking protection must articulate compelling reasons, supported by specific facts 23 and legal justification, for the requested sealing order. Again, competent evidence 24 supporting the application to file documents under seal must be provided by 25 declaration. 26 Any document that is not confidential, privileged, or otherwise protectable in 27 its entirety will not be filed under seal if the confidential portions can be redacted. 28 If documents can be redacted, then a redacted version for public viewing, omitting 1 only the confidential, privileged, or otherwise protectable portions of the document, 2 shall be filed. Any application that seeks to file documents under seal in their 3 entirety should include an explanation of why redaction is not feasible. 4 2. DEFINITIONS 5 2.1 Action: Maika Fauteux v. Walmart, Inc. (Case Number: 2:20-cv- 6 00925-DSF-RAO) in the Western Division of the United States District Court of 7 the Central District of California. 8 2.2 Challenging Party: a Party or Non-Party that challenges the 9 designation of information or items under this Order. 10 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 11 how it is generated, stored or maintained) or tangible things that qualify for 12 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 13 the Good Cause Statement 14 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 15 their support staff). 16 2.5 Designating Party: a Party or Non-Party that designates information or 17 items that it produces in disclosures or in responses to discovery as 18 “CONFIDENTIAL.” 19 2.6 Disclosure or Discovery Material: all items or information, regardless 20 of the medium or manner in which it is generated, stored, or maintained (including, 21 among other things, testimony, transcripts, and tangible things), that are produced 22 or generated in disclosures or responses to discovery in this matter. 23 2.7 Expert: a person with specialized knowledge or experience in a matter 24 pertinent to the litigation who has been retained by a Party or its counsel to serve as 25 an expert witness or as a consultant in this Action. 26 2.8 House Counsel: attorneys who are employees of a party to this Action. 27 House Counsel does not include Outside Counsel of Record or any other outside 28 counsel. 1 2.9 Non-Party: any natural person, partnership, corporation, association or 2 other legal entity not named as a party to this action. 3 2.10 Outside Counsel of Record: attorneys who are not employees of a 4 party to this Action but are retained to represent or advise a party to this Action and 5 have appeared in this Action on behalf of that party or are affiliated with a law firm 6 that has appeared on behalf of that party, and includes support staff. 7 2.11 Party: any party to this Action, including all of its officers, directors, 8 employees, consultants, retained experts, and Outside Counsel of Record (and their 9 support staffs). 10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 11 Discovery Material in this Action. 12 2.13 Professional Vendors: persons or entities that provide litigation 13 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 14 demonstrations, and organizing, storing, or retrieving data in any form or medium 15 and their employees and subcontractors). 16 2.14 Protected Material: any Disclosure or Discovery Material that is 17 designated as “CONFIDENTIAL” 18 2.15 Receiving Party: a Party that receives Disclosure or Discovery 19 Material from a Producing Party. 20 3. SCOPE 21 The protections conferred by this Order cover not only Protected Material (as 22 defined above), but also (1) any information copied or extracted from Protected 23 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 24 and (3) any testimony, conversations, or presentations by Parties or their Counsel 25 that might reveal Protected Material. 26 Any use of Protected Material at trial shall be governed by the orders of the 27 trial judge. This Order does not govern the use of Protected Material at trial. 28 /// 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 4 introduced as an exhibit at trial becomes public and will be presumptively available 5 to all members of the public, including the press, unless compelling reasons 6 supported by specific factual findings to proceed otherwise are made to the trial 7 judge in advance of the trial. See Kamakana,

(distinguishing 8 “good cause” showing for sealing documents produced in discovery from 9 “compelling reasons” standard when merits-related documents are part of court 10 record). Accordingly, the terms of this protective order do not extend beyond the 11 commencement of the trial, unless extended by the Court. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection: 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. The Designating Party must designate for 17 protection only those parts of material, documents, items or oral or written 18 communications that qualify so that other portions of the material, documents, 19 items or communications that qualify so that other portions of the material, 20 documents, items or communications for which protection is not warranted are not 21 swept unjustifiably within the ambit of this Order. 22 Mass, indiscriminate or routinized designations are prohibited. Designations 23 that are shown to be clearly unjustified or that have been made for an improper 24 purpose (e.g., to unnecessarily encumber the case development process or to 25 impose unnecessary expenses and burdens on other parties) may expose the 26 Designating Party to sanctions. 27 /// 28 /// 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations: Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) For information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 14 contains protected material. If only a portion of the material on a page qualifies for 15 protection, the Producing Party also must clearly identify the protected portion(s) 16 (e.g., by making appropriate markings in the margins.) 17 (b) A Party or Non-Party that makes original documents available 18 for inspection need not designate them for protection until after the inspecting Party 19 has indicated which documents it would like copied and produced. During the 20 inspection and before the designation, all of the material made available for 21 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 22 identified the documents it wants copied and produced, the Producing Party must 23 determine which documents, or portions thereof, qualify for protection under this 24 Order. Then, before producing the specified documents, the Producing Party must 25 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 26 If only a portion of the material on a page qualifies for protection, the Producing 27 Party also must clearly identify the protected portion(s) (e.g., by making 28 appropriate markings in the margins). 1 (c) For testimony given in depositions that the Designating Party 2 identifies the Disclosure or Discovery Material on the record, before the close of 3 the deposition all protected testimony. 4 For information produced in some form other than documentary and for any 5 other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information is stored the legend 7 “CONFIDENTIAL” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the 9 protected portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive 12 the Designating Party’s right to secure protection under this Order for such 13 material. Upon timely correction of a designation, the Receiving Party must make 14 reasonable efforts to assure that the material is treated in accordance with the 15 provisions of this Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges: Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 6.2 Meet and Confer: Before making such a motion under Section 6.1, the 21 party or an interested member of the public shall first attempt to resolve such 22 dispute with the producing party’s counsel. If informal meet and confer efforts are 23 unsuccessful, the Challenging Party shall initiate the dispute resolution process 24 under Local Rule 37-1 et seq. 25 6.3 Informal Discovery Conference: Before making such motion, the 26 party or interested member of the public shall first attempt to participate in an 27 informal discovery conference (“IDC”) with the Court. The party or interested 28 member of the public who fails to do so waives and forfeits any right to seek or 1 collect sanctions. Notwithstanding Section 6.1, if an IDC is requested, then the 2 challenged Protected Material shall retain its protection under this Order, from the 3 time the IDC is requested, through and including 15 days after the earlier of: (i) 4 completion of the IDC, (ii) refusal by the other party or interested member of the 5 public to participate in the IDC, or (iii) refusal by the Court to hold an IDC. 6 6.4 The burden of persuasion in any such challenge proceeding shall be on 7 the Designating Party. Frivolous challenges, and those made for an improper 8 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 9 parties) may expose the Challenging Party to sanctions. Unless the Designating 10 Party has waived or withdrawn the confidentiality designation, all parties shall 11 continue to afford the material in question the level of protection to which it is 12 entitled under the Producing Party’s designation until the Court rules on the 13 challenge. 14 7. ACCESS TO AND USE OF PROTECTED MATERIAL 15 7.1 Basic Principles: A receiving Party may use Protected Material that is 16 disclosed or produced by another Party or by a Non-Party in connection with this 17 Action only for prosecuting, defending or attempting to settle this Action. Such 18 Protected Material may be disclosed only to the categories of persons and under 19 the conditions described in this Order. When the Action has been terminated, a 20 Receiving party must comply with the provisions of section 13 below (FINAL 21 DISPOSITION). 22 Protected material must be stored and maintained by a Receiving Party at a 23 location and in a secure manner that ensures that access is limited to the persons 24 authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items: Unless 26 otherwise ordered by the court or permitted in writing by the Designating Party, a 27 Receiving Party may disclose any information or item designated 28 “CONFIDENTIAL” only to: 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, 2 as well as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House 5 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this 6 Action; 7 (c) Experts (as defined in this Order) of the Receiving Party to 8 whom disclosure is reasonably necessary for this Action and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (d) the court and its personnel; 11 (e) court reporters and their staff; 12 (f) professional jury or trial consultants; mock jurors, and 13 Professional Vendors to whom disclosure is reasonably necessary for this Action 14 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 15 A); 16 (g) the author or recipient of a document containing the information 17 or a custodian or other person who otherwise possessed or knew the information; 18 (h) during their depositions, witnesses, and attorneys for witnesses, 19 in the Action to whom disclosure is reasonably necessary provided: (1) the 20 deposing party requests that the witness sign the form attached as Exhibit A hereto; 21 and (2) they will not be permitted to keep any confidential information unless they 22 sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 23 otherwise agreed by the Designating Party or ordered by the court. Pages of 24 transcribed deposition testimony or exhibits to depositions that reveal Protected 25 Material may be separately bound by the court reporter and may not be disclosed to 26 anyone except as permitted under this Protective Order; and 27 /// 28 /// 1 (i) any mediator or settlement officer, and their supporting 2 personnel, mutually agreed upon by any of the parties engaged in settlement 3 discussions. 4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 5 IN OTHER LITIGATION 6 If a Party is served with a subpoena or a court order issued in other litigation 7 that compels disclosure of any information or items designated in this Action as 8 “CONFIDENTIAL”, that Party must: 9 (a) promptly notify in writing the Designating Party. Such 10 (b)notification shall include a copy of the subpoena or court order; 11 promptly notify in writing the party who caused the subpoena or 12 order to issue in the other litigation that some or all of the material 13 covered by the subpoena or order is subject to this Protective Order. 14 Such notification shall include a copy of this Protective Order; and 15 (c)cooperate with respect to all reasonable procedures sought to be 16 pursued by the Designating party whose Protected Material may be 17 affected. 18 If the Designating party timely seeks a protective order, the Party served with 19 the subpoena or court order shall not produce any information designated in this 20 action as “CONFIDENTIAL” before a determination by the court from which the 21 subpoena or order issued, unless the Party has obtained the Designating Party’s 22 permission. The Designating party shall bear the burden and expense of seeking 23 protecting in the court of its Protected Material and nothing in these provisions 24 should be construed as authorizing or encouraging a Receiving Party in this Action 25 to disobey a lawful directive from another court. 26 /// 27 /// 28 /// 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced 4 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such 5 information produced by Non-Parties in connection with this litigation is protected 6 by the remedies and relief provided by this Order. Nothing in these provisions 7 should be construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery 9 request, to produce a Non-Party’s confidential information in its possession, and the 10 Party is subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the 13 Non-Party that some or all of the information requested is subject to a 14 confidentiality agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the 16 Protective Order in this Action, the relevant discovery request(s), and a 17 reasonably specific description of the information requested; and 18 (3) Make the information requested available for inspection 19 by the Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court 21 within 14 days of receiving the notice and accompanying information, the 22 Receiving Party may produce the Non-Party’s confidential information responsive 23 to the discovery request. If the Non-Party timely seeks a protective order, the 24 Receiving Party shall not produce any information in its possession or control that 25 is subject to the confidentiality agreement with the Non-Party before a 26 determination by the court. Absent a court order to the contrary, the Non-Party 27 shall bear the burden and expense of seeking protection in this court of its Protected 28 Material. 1 (d) Before making such motion, the party or interested member of 2 the public shall first attempt to participate in an informal discovery conference 3 (“IDC”) with the Court. The party or interested member of the public who fails to 4 do so waives and forfeits any right to seek or collect sanctions. 5 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 Protected Material to any person or in any circumstance not authorized under this 8 Protective Order, the Receiving Party must immediately (a) notify in writing the 9 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 10 all unauthorized copies of the Protected Material, (c) inform the person or persons 11 to whom unauthorized disclosures were made of all the terms of this Order, and (d) 12 request such person or persons to execute the “Acknowledgment and Agreement to 13 Be Bound” that is attached hereto as Exhibit A. 14 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 15 PROTECTED MATERIAL 16 11.1 When a Producing Party gives notice to Receiving Parties that certain 17 inadvertently produced material is subject to a claim of privilege or other 18 protection, the obligations of the Receiving Parties are those set forth in Federal 19 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 20 whatever procedure may be established in an e-discovery order that provides for 21 production without prior privilege review. Pursuant to Federal Rule of Evidence 22 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 23 of a communication or information covered by the attorney-client privilege or 24 work product protection, the parties may incorporate their agreement in the 25 stipulated protective order submitted to the court. 26 12. MISCELLANEOUS 27 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 28 person to seek its modification by the Court in the future. 1 12.2 Right to Assert Other Objections. By stipulating to the entry of this 2 Protective Order, no Party waives any right it otherwise would have to object to 3 disclosing or producing any information or item on any ground not addressed in 4 this Protective Order. Similarly, no Party waives any right to object on any ground 5 to use in evidence of any of the material covered by this Protective Order. 6 12.3 Filing Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Local Civil Rule 79-5.2.2. Protected Material 8 may only be filed under seal pursuant to a court order authorizing the sealing of the 9 specific Protected Material at issue. If a Party’s request to file Protected Material 10 under seal is denied by the court, then the Receiving Party may file the information 11 in the public record unless otherwise instructed by the court. 12 13. FINAL DISPOSITION 13 After the final disposition of this Action, as defined in paragraph 4, within 60 14 days of a written request by the Designating Party, each Receiving Party must 15 return all Protected Material to the Producing Party or destroy such material. As 16 used in this subdivision, “all Protected Material” includes all copies, abstracts, 17 compilations, summaries, and any other format reproducing or capturing any of the 18 Protected Material. Whether the Protected Material is returned or destroyed, the 19 Receiving Party must submit a written certification to the Producing Party (and, if 20 not the same person or entity, to the Designating Party) by the 60 day deadline that 21 (1) identifies (by category, where appropriate) all the Protected Material that was 22 returned or destroyed and (2) affirms that the Receiving Party has not retained any 23 copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Protected Material. The Receiving Party’s obligation to return 25 or destroy Protected Material and certify such return or destruction extends to 26 Protected Material the Receiving Party disclosed to others who signed Exhibit A, 27 Acknowledgment and Agreement to Be Bound, pursuant to Section 7.2 of this 28 Order. Notwithstanding this provision, Counsel are entitled to retain an archival 1 | copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 2 || memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 3 | work product, and consultant and expert work product, even if such materials 4 || contain Protected Material. Any such archival copies that contain or constitute 5 | Protected Material remain subject to this Protective Order as set forth in Section 4 6 | (DURATION). 71 14. MIOLATION 8 Any violation of this Order may be punished by appropriate measures 9 | including, without limitation, contempt proceedings and/or monetary sanctions. 10 11 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED 12 | DATE: October 27, 2020 Razeha G, QE 14 | HON. ROZELLA A. OLIVER 5 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 | ——— — —,/§ PROTECTIVE ORDER

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 My name is [print or type full name]. I live or 4 work at [print or type full address]. I 5 am working on behalf (or at the direction and engagement) of _________________. 6 I declare under penalty of perjury that I have read in its entirety and 7 understand the Protective Order that was issued by the United States District Court 8 for the Central District of California on [date] in the case of 9 Maika Fauteux v. Walmart, Inc., et al., U.S. District Court Case No. 2:20-cv- 10 00925-DSF-RAO. 11 I agree to comply with and to be bound by all the terms of this Protective 12 Order and I understand and acknowledge that failure to so comply could expose me 13 to sanctions and punishment in the nature of contempt. 14 I solemnly promise that I will not disclose in any manner any information or 15 item that is subject to this Protective Order to any person or entity except in strict 16 compliance with the provisions of this Order. 17 I further agree to submit to the jurisdiction of the United States District Court 18 for the Central District of California for enforcing the terms of this Protective 19 Order, even if such enforcement proceedings occur after termination of this action. 20 I hereby appoint [print or type full name] of 21 [print or type full address and telephone number] 22 as my California agent for service of process in connection with this action or any 23 proceedings related to enforcement of this Protective Order. 24 Dated: 25 City and State where sworn and signed: 26 Printed name: 27 Signature: 28