Morales-Rios v. Wal-Mart Stores Inc.

11 RESNICK & LOUIS, P.C.

TROY A. CLARK, ESQ.

22 Nevada Bar No. 11361 [email protected] MATTHEW B. BECKSTEAD, ESQ.

Nevada Bar No. 14168 [email protected] 8925 West Russell Road, Suite 220 Las Vegas, NV 89148 Telephone: (702) 997-3800 Facsimile: (702) 997-3800 Attorneys for Defendants Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT 1100 DISTRICT OF NEVADA 1111 MARTINA MORALES-RIOS, an individual; CASE NO.: 3:22-cv-00270-MMD-CSD 1122 Plaintiff, STIPULATED CONFIDENTIALITY ORDER 1133 v. WAL-MART STORES, INC., a foreign 55 Corporation; DOES 1-20; and ROE CORPORATIONS 1-20; inclusive 17 Defendants.

18 COME NOW Defendants WAL-MART STORES INC. (collectively “Walmart” or “Defendants”), by and through their attorneys of record, Troy A. Clark, Esq., and Matthew B.

20 Beckstead, Esq., of the law firm Resnick & Louis, P.C., and Plaintiff MARTINA MORALES RIO (“Plaintiff”), by and through her attorney of record, Jonathan B. Lee, Esq., of the law firm RICHARD HARRIS LAW FIRM, (collectively with Defendant, the “Parties”), and hereby submit their Proposed Stipulated Confidentiality Order.

24 The Parties have agreed to and have submitted, and for good cause shown the Court hereby enters, the following Confidentiality Order: 26 1. This Order shall govern the disclosure of materials designated as Confidential Material in this litigation. “Confidential Material,” as used in this Order, shall refer to any 11 document or item designated as Confidential or Highly Confidential – Attorneys’ Eyes 22 Only, including, but not limited to, documents or items produced during discovery, all 33 copies thereof, and the information contained in such material. Nothing in this Order 44 shall require any party to produce any specific documents or category of documents 55 which a party deems inappropriate for production.

66 Definitions of Confidential Material 77 2. “Confidential Material,” as used in this Order, also consists of the following materials 88 and categories of materials: 99 a. Materials relating to any privileged, confidential, or nonpublic information, 1100 including, but not limited to, trade secrets, research design, development, 1111 financial, technical, marketing, planning, personal, or commercial 1122 information, as such terms are used in the Federal Rules of Civil Procedure, 1133 Fed. R. Civ. P. 26(c)(1)(G), and any applicable case law interpreting FRCP 14 26(c)(1)(G); contracts; non-public compilations of retail prices; proprietary 15 information; vendor agreements; personnel files; claim/litigation information; 16 and nonpublic policies and procedures shall be deemed “Confidential.”

17 b. Materials containing corporate trade secrets, nonpublic research and 18 development data, including, but not limited to, cost data, pricing formulas, 19 inventory management programs, and other sales or business information not 20 known to the public; information obtained from a non-party pursuant to a non- 21 disclosure agreement; and customer-related Protected Data shall be deemed 22 “Highly Confidential – Attorneys’ Eyes Only.”

23 c. “Protected Data” shall refer to any information that a party believes in good 24 faith to be subject to federal, state or foreign data protection laws or other 25 privacy obligations. Examples of such data protection laws include, but are not 26 limited to, The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial 27 information); and The Health Insurance Portability and Accountability Act and 11 Part 164 (individually identifiable health information). Certain Protected Data 22 may compel alternative or additional protections beyond those afforded Highly 33 Confidential – Attorneys’ Eyes Only material, in which event the Parties shall 44 meet and confer in good faith and, if unsuccessful, shall move the Court for 55 appropriate relief.

66 The Parties shall not designate as “Confidential” or “Highly Confidential – Attorneys’ 77 Eyes Only” information that is already public knowledge.

88 3. The Parties agree that such Confidential Material as described in Paragraph 2 should 99 be given the protection of an Order of this Court to prevent injury through disclosure 1100 to persons other than those persons involved in the prosecution or defense of this 1111 litigation.

1122 Procedure for Designating Information as Confidential or Highly Confidential 1133 4. To designate information as confidential, the producing party shall mark Confidential 14 Material with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 15 ATTORNEYS’ EYES ONLY.” Parties shall submit confidential discovery responses, 16 such as answers to interrogatories or answers to requests for admissions, in a separate 17 document stamped with the appropriate legend designating those responses as 18 Confidential Material. The Receiving Party may make copies of Confidential Material 19 and such copies shall become subject to the same protections as the Confidential 20 Material from which those copies were made.

21 a. Information on a disk or other electronic format (e.g., a native format 22 production) may be designated confidential by marking the storage medium 23 itself (or the native file’s title) with the legend “CONFIDENTIAL” or 24 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The 25 Receiving Party shall mark any hard-copy printouts and the storage medium 26 of any permissible copies of such electronic material with the corresponding 27 legend contained on the original and such copies shall become subject to the 11 same protections, as the Confidential Material from which those copies were 22 made.

33 b. Information disclosed at any deposition of a party taken in this action may be 44 designated by the party as confidential by indicating on the record at the 55 deposition that the information is confidential and subject to the provisions of 66 this Order. Alternatively, the party may designate information disclosed at the 77 deposition as confidential by notifying the court reporter and other parties in 88 writing, within fifteen (15) business days of receipt of the transcript, of the 99 specific pages and lines of the transcript which are designated as confidential.

1100 The parties may agree to a reasonable extension of the 15-business-day period 1111 for designation. Designations of transcripts will apply to audio, video, or other 1122 recordings of the testimony. During such 15-business-day period, the entire 1133 transcript shall receive confidential treatment. Upon such designation, the 14 court reporter and each party shall affix the “CONFIDENTIAL” or “HIGHLY 15 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to the designated 16 pages and segregate them as appropriate.

17 5. A producing party may change the confidentiality designation of materials it has 18 produced, as follows: (1) The producing party must give the receiving parties notice 19 of the change by identifying the documents or information at issue. Once notice is 20 given, the receiving party must make good-faith efforts to ensure that the documents 21 or information are accorded treatment under the new designation. (2) Within a 22 reasonable period after giving notice, the producing party must reproduce the 23 documents or information in a format that contains the new designation. (3) If such 24 information has been disclosed to persons not qualified pursuant to paragraphs 12-13 25 below, the party who disclosed such information shall (a) take reasonable efforts to 26 retrieve previously disclosed Confidential Material; (b) advise such persons that the 27 material is Confidential; and (c) give the producing party written assurance that steps 11 Data Security 22 6. The Parties agree to provide adequate security to protect data produced by the other 33 party(ies) or by non-parties. This includes secure data storage systems, established 44 security policies, and security training for employees, contractors and experts.

55 Adequate security also includes such measures as data encryption in transit, data 66 encryption at rest, data access controls, and physical security, whether 77 hosted/outsourced to a vendor or on premises. At a minimum, any receiving party 88 subject to the terms of this Confidentiality Order, will provide reasonable measures to 99 protect non-client data consistent with the American Bar Association Standing 1100 Committee on Ethics and Professional Responsibility, Formal Opinion 477R.

1111 Clawback Provisions 1122 7. The production of privileged or work-product protected documents, electronically 1133 stored information (ESI) or information, whether inadvertent or otherwise, is not a 14 waiver of the privilege or protection from discovery in this case or in any other federal 15 or state proceeding.

16 8. This Order shall be interpreted to provide the maximum protection allowed by Federal 17 Rule of Evidence (FRE) 502(d) and shall be enforceable and granted full faith and 18 credit in all other state and federal proceedings by 28 U.S.C. § 1738. In the event of 19 any subsequent conflict of law, the law that is most protective of privilege and work 20 product shall apply.

21 9. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct 22 a review of documents, ESI or information (including metadata) for relevance, 23 responsiveness and/or segregation of privileged and/or protected information before 24 production.

25 10.If the receiving party has reason to believe that a produced document or other 26 information may reasonably be subject to a claim of privilege, then the receiving party 27 shall immediately sequester the document or information, cease using the document 11 inform the producing party of the beginning BATES number of the document or, if no 22 BATES number is available, shall otherwise inform the producing party of the 33 information.

44 11.A producing party must give written notice to any receiving party asserting a claim of 55 privilege, work-product protection, or other ground for reclaiming documents or 66 information (a “clawback request”). After a clawback request is received, the 77 receiving party shall immediately sequester the document (if not already sequestered) 88 and shall not review or use that document, or any work product containing information 99 taken from that document, for any purpose. The parties shall meet and confer 1100 regarding any clawback request.

1111 Who May Receive Confidential and Highly Confidential Information 1122 12.Confidential. Any Confidential material and the information contained therein shall 1133 be disclosed only to the Court, its staff, in-house counsel and outside counsel of record 14 for each party, and also shall be disclosed on a need-to-know basis only to the parties, 15 counsel’s staff personnel, employees of a party to whom disclosure is necessary in 16 connection with the preparation for and trial of this action, and any witnesses in the 17 case (including consulting and testifying experts) as may from time to time reasonably 18 be necessary in prosecution or defense of this action.

19 13.Highly Confidential—Attorneys’ Eyes Only Material. Material and information 20 designated as “Highly Confidential—Attorneys’ Eyes Only” shall only be disclosed 21 to the Court, its staff, in-house and outside counsel of record for each party, the 22 secretarial, clerical, and paralegal staff of each, and consulting and testifying experts 23 retained by a party in this action.

24 14.Restriction on Disclosure to Direct Competitors. Notwithstanding the foregoing, 25 Confidential Material shall not be disclosed to any current or former employees of, or 26 current or former consultants, advisors, or agents of, a direct competitor of any party 27 named in the litigation. If a Receiving Party is in doubt about whether a particular 11 any Confidential Material to a current or former employee, consultant, advisor, or 22 agent of that entity, the Receiving Party’s counsel must confer with counsel for the 33 Producing Party.

44 15.Persons Receiving Confidential Material Must Sign Exhibit A. Counsel for each party 55 shall advise all persons to whom Confidential Material is disclosed pursuant to this 66 Order of the existence of this Order and shall provide all such persons (other than the 77 Court and its staff) with a copy of this Order. Counsel shall also require such persons 88 to execute the Declaration attached as Exhibit A, prior to the disclosure of Confidential 99 Material.

1100 16.Duties in the Event of Unauthorized Disclosures. It shall be the obligation of counsel, 1111 upon learning of any unauthorized disclosure or threatened unauthorized disclosure of 1122 Confidential Material or information contained therein, or any other breach or 1133 threatened breach of the provisions of this Order, to promptly notify counsel for the 14 Producing Party. The notification shall be supplemented with reasonable details of the 15 circumstances of the disclosure in order to permit the Producing Party to understand 16 and take appropriate steps. Each party and its counsel agree to take reasonable and 17 good-faith efforts to contain or limit any breach promptly upon receiving notice of it, 18 and to make reasonable and good-faith attempts to retrieve any unauthorized 19 disclosure of documents or information. This provision does not limit the producing 20 party’s entitlement to damages resulting from any breach of this Order.

21 Authorized Uses of Confidential Material 22 17.Confidential Material shall only be used for the purpose of litigating the above- 23 captioned lawsuit and may not be used in other lawsuits.

24 18.Persons having knowledge of Confidential Material and information contained 25 therein, due to their participation in the conduct of this litigation, shall use such 26 knowledge and information only as permitted herein, and such persons shall not 27 disclose such Confidential Material, their contents, or any portion or summary thereof 11 19.If any person having access to the Confidential Material herein shall violate this Order, 22 he/she may be subject to sanctions by the Court and may be liable to pay for the 33 damages caused to the Producing Party by his/her violation.

44 Challenges to the Designation of Confidential Material 55 20.Any party or interested member of the public may move the Court to modify the 66 designation of any documents or information produced in this litigation (either to 77 include additional protection with respect to confidentiality or to remove a confidential 88 designation). Before making such a motion, the party or an interested member of the 99 public shall first attempt to resolve such dispute with the producing party’s counsel.

1100 Pending resolution of any challenges to the designation of documents or information, 1111 the material at issue shall continue to be treated as Confidential Material until ordered 1122 otherwise by the Court. The burden shall be on the party seeking to modify the 1133 designation to show that the producing party’s designation is inappropriate.

14 Withholding of Information 15 21.Non-relevant Attachments. The parties will not produce non-relevant attachments that 16 are attached to relevant emails. When an attachment is withheld, either for privilege 17 or non-responsiveness, the producing party shall produce a one-page PDF image in 18 place of the withheld attachment, correspondingly stating “Attachment Withheld- 19 Privileged” or “Attachment Withheld-Nonresponsive” and bearing a sequential 20 BATES number within the family BATES range. If any attachment to an email 21 contains responsive content, then the cover email shall be produced for context, 22 regardless of the cover email’s responsiveness. The cover email may be redacted in 23 part to remove sensitive information, as described below.

24 22.Redactions. The parties may redact (1) information that is privileged or protected from 25 discovery as work product or by reason of any other applicable privilege or immunity; 26 (2) information subject to non-disclosure obligations imposed by governmental 27 authorities, law or regulation (e.g., protected personal information); and (3) sensitive, 11 information, trade secrets, or information regarding products, data, or people.

22 Privilege redactions will state, over the redacted portion, “Redacted–Privileged,” and 33 all other redactions will state, “Redacted–Nonresponsive.” Redactions of emails will 44 not redact the names of recipients or the subject line of the emails, unless the subject 55 line is itself privileged or contains the sensitive information described above, in which 66 case only so much of the subject line will be redacted as may be needed. The parties 77 will produce redacted documents in PDF format (or in native format for file types that 88 do not convert well to PDF, such as Excel files) with corresponding searchable OCR 99 text and the associated metadata for the document, ensuring the redacted content is 1100 fully protected from disclosure.

1111 Confidential Material in Filings, Hearings, and Trial 1122 23.Confidential Material in Filings. Without written permission from the Producing Party 1133 or a court order secured after appropriate notice to all interested persons, a party may 14 not file Confidential Material in the public record in this action (or in any other action, 15 e.g., an appeal). A party that seeks to file under seal any Confidential Material must 16 comply with LR IA 10-5 and LR IC 4-1(c). Confidential Material may only be filed 17 under seal in a manner prescribed by the Court for such filings.

18 24.Manner of Sealing. In the event Confidential Materials or portions of transcripts are 19 sealed as confidential by the Court or as described in paragraph 23 above, they shall 20 be filed in an envelope bearing the following designation when deposited: 21 CONFIDENTIAL 22 IN ACCORDANCE WITH THE CONFIDENTIALITY ORDER OF THE COURT, 22 THE CONTENTS OF THIS ENVELOPE SHALL BE TREATED AS 23 CONFIDENTIAL AND MUST NOT BE SHOWN TO A PERSON OTHER THAN 23 THE COURT, ATTORNEYS IN THIS CASE, OR TO PERSONS ASSISTING 24 THOSE ATTORNEYS.

25 25.Confidential Material in Hearings and Trial. The provisions of this Order shall not 26 affect, and this Order does not limit, the admissibility of Confidential Material (or 27 references to that material) as evidence at trial, or during a hearing or similar 11 contained therein at any hearing that is open to the public, the party seeking to use 22 the Confidential Material must give at least seven (7) days advance notice to the 33 producing party of the intent to use the Confidential Material so that the Producing 44 Party may seek an appropriate Court Order to protect the Confidential Material.

55 Continuing Effect of This Order and Duty to Destroy 66 26.This Order shall continue to be binding throughout and after the conclusion of this 77 litigation, including all appeals. Within thirty (30) days of settlement or final 88 adjudication, including the expiration or exhaustion of all rights to appeal or petitions 99 for extraordinary writs, each party or non-party to whom any materials were produced 1100 shall, without further request or direction from the Producing Party, promptly destroy 1111 all documents, items or data received including, but not limited to, copies or 1122 summaries thereof, in the possession or control of any expert or employee. This 1133 requirement to destroy includes all documents designated as Confidential Material.

14 The Receiving Party shall submit a written certification to the Producing Party by the 15 30-day deadline that (1) confirms the destruction/deletion of all Confidential 16 Material, including any copies of Confidential Materials provided to persons required 17 to execute Exhibit A (Affidavit), and (2) affirms the Receiving Party has not retained 18 any copies, abstracts, compilations, summaries, or any other format reproducing or 19 capturing any of the Confidential Material. Notwithstanding this provision, outside 20 counsel is entitled to retain an archival copy of filings, depositions, and deposition 21 exhibits.

22 Procedure if Confidential Material Is Required to Be Produced 23 27.If any person receiving documents covered by this Order is served with a subpoena, 24 order, interrogatory, or document or civil investigative demand (collectively, a 25 “Demand”) issued in any other action, investigation, or proceeding, and such 26 Demand seeks material that was produced or designated as Confidential Material by 27 someone other than the Receiving Party, the Receiving Party shall give prompt 11 receipt of such Demand to the party or non-party who produced or designated the 22 material as Confidential Material, and shall object to the production of such materials 33 on the grounds of the existence of this Order. At the request of the party or non-party 44 who produced or designated the material as Confidential Material, the Receiving 55 Party shall refuse to comply with the Demand unless (a) ordered to do so by a court 66 with jurisdiction over the Receiving Party; or (b) released in writing by the party or 77 non-party who designated the material as Confidential Material. The burden of 88 opposing the enforcement of the Demand shall fall upon the party or non-party who 99 produced or designated the material as Confidential Material. Compliance by the 1100 Receiving Party with any order of a court of competent jurisdiction, directing 1111 production of any Confidential Material, shall not constitute a violation of this Order.

1122 Application of This Order to Productions by Third Parties 1133 28.This Order may be used by third parties producing documents in connection with this 14 action. Third parties may designate information as Confidential or Highly 15 Confidential – Attorneys’ Eyes Only.

16 29.If a third party produces (or intends to produce) documents and does not designate 17 (or does not intend to designate) those documents as Confidential Material, then any 18 party to this action may seek to designate that third party’s documents or categories 19 of documents as Confidential Material. In that case, it will be the burden of the party 20 seeking protected status to move for a court order designating the materials as 21 Confidential Material after the parties confer.

22 30.In the event additional parties join or intervene in this litigation, the newly joined 23 party(ies) shall not have access to Confidential Material until its/his/her/their counsel 24 has executed and, at the request of any party, filed with the Court the agreement of 25 such party(ies) and such counsel to be fully bound by this Order.

26 31.The Parties agree that nothing in this Order shall be deemed to limit the extent to 27 which counsel for the Parties may advise or represent their respective clients, conduct ] Confidential Material as set forth herein, or oppose the production or admissibility of 2 any information or documents which have been requested.

3 32. This Order shall remain in full force and effect until such time as it is modified, 4 amended, or rescinded by the Court.

5 Dated this 28th day of October 2022 Dated this 28th day of October 2022 6 RESNICK & LOUIS, P.C. RICHARD HARRIS LAW FIRM || /s/ Matthew B. Beckstead /s/ Jonathan B. Lee TROY A. CLARK, ESQ. JONATHAN B. LEE, ESQ.

9 Nevada Bar No. 11361 Nevada Bar No. 13524 10 MATTHEW B. BECKSTEAD, ESQ. 801 South Fourth Street, Nevada Bar No. 14168 Las Vegas, Nevada 89101 11 8925 West Russell Road, Suite 220 Phone: (702) 444-4444 Las Vegas, NV 89148 Facsimile: (702) 444-4455 12 Attorney for Plaintiff Attorneys for Defendant Martina Morales-Rios 13 Wal-Mart Stores, Inc. 15 ORDER Paragraph 23 is modified to reflect that any motion regarding filing confidential information and motions to seal shall also comply with the requirements of Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). See afso, Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016).

17 Paragraph 26 is modified to reflect that although the parties may agree to be bound by the confidentiality terms of this Order beyond the conclusion of this lawsuit, the dismissal of this action will terminate the jurisdiction of this court.

IT IS SO ORDERED. Cc S DATED: November 10, 2022.

20 UNITED STATES MAGISTRATE JUDGE 11 EXHIBIT A TO CONFIDENTIALITY ORDER 22 UNITED STATES DISTRICT COURT 33 DISTRICT OF NEVADA MARTINA MORALES-RIOS, an individual; CASE NO.: 2:22-cv-00270-MMD-CSD Plaintiff, v. WAL-MART STORES, INC., a foreign Corporation; DOES 1-20; and ROE CORPORATIONS 1-20; inclusive 1100 Defendants.

1111 DECLARATION OF COMPLIANCE WITH CONFIDENTIALITY ORDER 1122 1. My name is ___________________. I live at ________________________________ 1133 ____________________________________________________. I am working on behalf (or at the direction and engagement) of __________________________.

2. I am aware that a Confidentiality Order has been entered in the above-captioned lawsuit.

A copy of this Confidentiality Order has been given to me, and I have read and understand the provisions of same.

18 3. I acknowledge that documents and information designated as confidential and/or highly confidential pursuant to such Confidentiality Order (“Confidential Materials”) are being disclosed to me only upon the conditions that I agree (a) to be subject to the jurisdiction of this Court, and (b) to comply with that Order. I hereby agree to abide by such Order, subject to all penalties prescribed therein, including contempt of Court, for disobedience of said Order. I promise that the documents and information given confidential treatment under the Confidentiality Order entered in this case will be used by me only to assist counsel for the parties in preparing for litigation of the above-captioned matter. I understand that any use of such Confidential Material in any manner contrary to the provisions of the Confidentiality Order may subject me to the sanctions of this Court for contempt and to liability for any damages caused by my breach of the Confidentiality Order.

22 4. I shall not disclose nor permit to be reviewed or copied said Confidential Materials, or any information derived from, by any person other than the parties and counsel for the parties or members of their staff.

55 5. Within 30 days after the above-captioned lawsuit ends in a final non-appealable order, I agree to destroy all Confidential Materials in my possession.

77 I declare under penalty of perjury under the laws of the State of Nevada that the foregoing is true and correct.

99 DATED: _________________, 2022 ____________________________________ Signature 1100 1111 ____________________________________ 1122 Printed Name 1133 Page 2 Exhibit A, Declaration of Compliance with Confidentiality Order