Amy Lorentzen v. The Kroger Co.

1

Jacob M. Harper (State Bar No. 259463)

2 jacobharper@dwt.com

Heather F. Canner (State Bar No. 292837)

3

heathercanner@dwt.com

4 DAVIS WRIGHT TREMAINE LLP

865 South Figueroa Street, 24th Floor

5

Los Angeles, California 90017-2566

6 Telephone: (213) 633-6800

Fax: (213) 633-6899

7

Attorneys for Defendant THE KROGER CO.

8

Gillian L. Wade (State Bar No. 229124)

9

gwade@mjfwlaw.com

10 Sara D. Avila (State Bar No. 263213)

savila@mjfwlaw.com

11

Marc A. Castaneda (299001)

12 mcastaneda@mjfwlaw.com

MILSTEIN JACKSON FAIRCHILD & WADE, LLP

13

10250 Constellation Blvd., Suite 1400

14 Los Angeles, CA 90067

Tel: (310) 396-9600

15

Fax: (310) 396-9635

16

Attorneys for Plaintiff AMY LORENTZEN

17

18 UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

19

AMY LORENTZEN, on behalf of Case No. 2:20-cv-06754-SB-RAO

20 herself and all others similarly Hon. Stanley Blumenfeld, Jr.

situated,

21

STIPULATED PROTECTIVE

22 Plaintiff, ORDER

vs.

23

THE KROGER CO., an Ohio

24 corporation; and DOES 1-10,

inclusive,

25

26 Defendant.

27

1 1. A. PURPOSES AND LIMITATIONS

2 Discovery in this action is likely to involve production of confidential,

3 proprietary or private information for which special protection from public

4 disclosure and from use for any purpose other than prosecuting this litigation may

5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

6 enter the following Stipulated Protective Order. The parties acknowledge that this

7 Order does not confer blanket protections on all disclosures or responses to

8 discovery and that the protection it affords from public disclosure and use extends

9 only to the limited information or items that are entitled to confidential treatment

10 under the applicable legal principles.

11

12 B. GOOD CAUSE STATEMENT

13 This action is likely to involve trade secrets, customer and pricing lists and

14 other valuable research, development, commercial, financial, technical and/or

15 proprietary information for which special protection from public disclosure and

16 from use for any purpose other than prosecution of this action is warranted. Such

17 confidential and proprietary materials and information consist of, among other

18 things, confidential business or financial information, information regarding

19 confidential business practices, or other confidential research, development, or

20 commercial information (including information implicating privacy rights of third

21 parties), information otherwise generally unavailable to the public, or which may be

22 privileged or otherwise protected from disclosure under state or federal statutes,

23 court rules, case decisions, or common law. Accordingly, to expedite the flow of

24 information, to facilitate the prompt resolution of disputes over confidentiality of

25 discovery materials, to adequately protect information the parties are entitled to keep

26 confidential, to ensure that the parties are permitted reasonable necessary uses of

27 such material in preparation for and in the conduct of trial, to address their handling

1 information is justified in this matter. It is the intent of the parties that information

2 will not be designated as confidential for tactical reasons and that nothing be so

3 designated without a good faith belief that it has been maintained in a confidential,

4 non-public manner, and there is good cause why it should not be part of the public

5 record of this case.

6

7 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

8 The parties further acknowledge, as set forth in Section 12.3, below, that this

9 Stipulated Protective Order does not entitle them to file confidential information

10 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

11 and the standards that will be applied when a party seeks permission from the court

12 to file material under seal.

13 There is a strong presumption that the public has a right of access to judicial

14 proceedings and records in civil cases. In connection with non-dispositive motions,

15 good cause must be shown to support a filing under seal. See Kamakana v. City and

16 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

17 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,

18 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

19 require good cause showing), and a specific showing of good cause or compelling

20 reasons with proper evidentiary support and legal justification, must be made with

21 respect to Protected Material that a party seeks to file under seal. The parties’ mere

22 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

23 without the submission of competent evidence by declaration, establishing that the

24 material sought to be filed under seal qualifies as confidential, privileged, or

25 otherwise protectable—constitute good cause.

26 Further, if a party requests sealing related to a dispositive motion or trial, then

27 compelling reasons, not only good cause, for the sealing must be shown, and the

1 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

2 each item or type of information, document, or thing sought to be filed or introduced

3 under seal in connection with a dispositive motion or trial, the party seeking

4 protection must articulate compelling reasons, supported by specific facts and legal

5 justification, for the requested sealing order. Again, competent evidence supporting

6 the application to file documents under seal must be provided by declaration.

7 Any document that is not confidential, privileged, or otherwise protectable in

8 its entirety will not be filed under seal if the confidential portions can be redacted.

9 If documents can be redacted, then a redacted version for public viewing, omitting

10 only the confidential, privileged, or otherwise protectable portions of the document

11 shall be filed. Any application that seeks to file documents under seal in their

12 entirety should include an explanation of why redaction is not feasible.

13

14 2. DEFINITIONS

15 2.1 Action: This Action, Amy Lorentzen v. The Kroger Ko., Case No. 2:20-

16 cv-06754-SB-RAO, pending before the Honorable Stanley Blumenfeld in the

17 Central District of California.

18 2.2 Challenging Party: a Party or Non-Party that challenges the

19 designation of information or items under this Order.

20 2.3 “CONFIDENTIAL” Information or Items: information (regardless of

21 how it is generated, stored or maintained) or tangible things that qualify for

22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

23 the Good Cause Statement.

24 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

25 their support staff).

26 2.5 Designating Party: a Party or Non-Party that designates information or

27 items that it produces in disclosures or in responses to discovery as

1 2.6 Disclosure or Discovery Material: all items or information, regardless

2 of the medium or manner in which it is generated, stored, or maintained (including,

3 among other things, testimony, transcripts, and tangible things) that are produced or

4 generated in disclosures or responses to discovery in this matter.

5 2.7 Expert: a person with specialized knowledge or experience in a matter

6 pertinent to the litigation who has been retained by a Party or its counsel to serve as

7 an expert witness or as a consultant in this Action.

8 2.8 House Counsel: attorneys who are employees of a party to this Action.

9 House Counsel does not include Outside Counsel of Record or any other outside

10 counsel.

11 2.9 Non-Party: any natural person, partnership, corporation, association or

12 other legal entity not named as a Party to this action.

13 2.10 Outside Counsel of Record: attorneys who are not employees of a

14 party to this Action but are retained to represent or advise a party to this Action and

15 have appeared in this Action on behalf of that party or are affiliated with a law firm

16 that has appeared on behalf of that party, and includes support staff.

17 2.11 Party: any party to this Action, including all of its officers, directors,

18 employees, consultants, retained experts, and Outside Counsel of Record (and their

19 support staffs).

20 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

21 Discovery Material in this Action.

22 2.13 Professional Vendors: persons or entities that provide litigation

23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or

24 demonstrations, and organizing, storing, or retrieving data in any form or medium)

25 and their employees and subcontractors.

26 2.14 Protected Material: any Disclosure or Discovery Material that is

27 designated as “CONFIDENTIAL.”

1 Material from a Producing Party.

2

3 3. SCOPE

4 The protections conferred by this Stipulation and Order cover not only

5 Protected Material (as defined above), but also (1) any information copied or

6 extracted from Protected Material; (2) all copies, excerpts, summaries, or

7 compilations of Protected Material; and (3) any testimony, conversations, or

8 presentations by Parties or their Counsel that might reveal Protected Material.

9 Any use of Protected Material at trial shall be governed by the orders of the

10 trial judge. This Order does not govern the use of Protected Material at trial.

11

12 4. DURATION

13 Once a case proceeds to trial, information that was designated as

14 CONFIDENTIAL or maintained pursuant to this protective order used or introduced

15 as an exhibit at trial becomes public and will be presumptively available to all

16 members of the public, including the press, unless compelling reasons supported by

17 specific factual findings to proceed otherwise are made to the trial judge in advance

18 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

19 showing for sealing documents produced in discovery from “compelling reasons”

20 standard when merits-related documents are part of court record). Accordingly, the

21 terms of this protective order do not extend beyond the commencement of the trial.

22

23 5. DESIGNATING PROTECTED MATERIAL

24 5.1 Exercise of Restraint and Care in Designating Material for Protection.

25 Each Party or Non-Party that designates information or items for protection under

26 this Order must take care to limit any such designation to specific material that

27 qualifies under the appropriate standards. The Designating Party must designate for

1 communications that qualify so that other portions of the material, documents, items

2 or communications for which protection is not warranted are not swept unjustifiably

3 within the ambit of this Order.

4 Mass, indiscriminate or routinized designations are prohibited. Designations

5 that are shown to be clearly unjustified or that have been made for an improper

6 purpose (e.g., to unnecessarily encumber the case development process or to impose

7 unnecessary expenses and burdens on other parties) may expose the Designating

8 Party to sanctions.

9 If it comes to a Designating Party’s attention that information or items that it

10 designated for protection do not qualify for protection, that Designating Party must

11 promptly notify all other Parties that it is withdrawing the inapplicable designation.

12 5.2 Manner and Timing of Designations. Except as otherwise provided in

13 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

15 under this Order must be clearly so designated before the material is disclosed or

16 produced.

17 Designation in conformity with this Order requires:

18 (a) for information in documentary form (e.g., paper or electronic

19 documents, but excluding transcripts of depositions or other pretrial or trial

20 proceedings), that the Producing Party affix at a minimum, the legend

21 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

22 contains protected material. If only a portion of the material on a page qualifies for

23 protection, the Producing Party also must clearly identify the protected portion(s)

24 (e.g., by making appropriate markings in the margins).

25 A Party or Non-Party that makes original documents available for inspection

26 need not designate them for protection until after the inspecting Party has indicated

27 which documents it would like copied and produced. During the inspection and

1 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

2 documents it wants copied and produced, the Producing Party must determine which

3 documents, or portions thereof, qualify for protection under this Order. Then,

4 before producing the specified documents, the Producing Party must affix the

5 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

6 portion of the material on a page qualifies for protection, the Producing Party also

7 must clearly identify the protected portion(s) (e.g., by making appropriate markings

8 in the margins).

9 (b) for testimony given in depositions that the Designating Party identifies

10 the Disclosure or Discovery Material on the record, before the close of the

11 deposition all protected testimony.

12 (c) for information produced in some form other than documentary and

13 for any other tangible items, that the Producing Party affix in a prominent place on

14 the exterior of the container or containers in which the information is stored the

15 legend “CONFIDENTIAL.” If only a portion or portions of the information

16 warrants protection, the Producing Party, to the extent practicable, shall identify the

17 protected portion(s).

18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

19 failure to designate qualified information or items does not, standing alone, waive

20 the Designating Party’s right to secure protection under this Order for such material.

21 Upon timely correction of a designation, the Receiving Party must make reasonable

22 efforts to assure that the material is treated in accordance with the provisions of this

23 Order.

24

25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

27 designation of confidentiality at any time that is consistent with the Court’s

1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process under Local Rule 37.1 et seq.

3 6.3 The burden of persuasion in any such challenge proceeding shall be on

4 the Designating Party. Frivolous challenges, and those made for an improper

5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other

6 parties) may expose the Challenging Party to sanctions. Unless the Designating

7 Party has waived or withdrawn the confidentiality designation, all parties shall

8 continue to afford the material in question the level of protection to which it is

9 entitled under the Producing Party’s designation until the Court rules on the

10 challenge.

11

12 7. ACCESS TO AND USE OF PROTECTED MATERIAL

13 7.1 Basic Principles. A Receiving Party may use Protected Material that is

14 disclosed or produced by another Party or by a Non-Party in connection with this

15 Action only for prosecuting, defending or attempting to settle this Action. Such

16 Protected Material may be disclosed only to the categories of persons and under the

17 conditions described in this Order. When the Action has been terminated, a

18 Receiving Party must comply with the provisions of section 13 below (FINAL

19 DISPOSITION).

20 Protected Material must be stored and maintained by a Receiving Party at a

21 location and in a secure manner that ensures that access is limited to the persons

22 authorized under this Order.

23 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

24 otherwise ordered by the court or permitted in writing by the Designating Party, a

25 Receiving Party may disclose any information or item designated

26 “CONFIDENTIAL” only to:

27 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

1 necessary to disclose the information for this Action;

2 (b) the officers, directors, and employees (including House Counsel) of

3 the Receiving Party to whom disclosure is reasonably necessary for this Action;

4 (c) Experts (as defined in this Order) of the Receiving Party to whom

5 disclosure is reasonably necessary for this Action and who have signed the

6 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

7 (d) the court and its personnel;

8 (e) court reporters and their staff;

9 (f) professional jury or trial consultants, mock jurors, and Professional

10 Vendors to whom disclosure is reasonably necessary for this Action and who have

11 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

12 (g) the author or recipient of a document containing the information or a

13 custodian or other person who otherwise possessed or knew the information;

14 (h) during their depositions, witnesses, and attorneys for witnesses, in the

15 Action to whom disclosure is reasonably necessary provided: (1) the deposing party

16 requests that the witness sign the form attached as Exhibit A hereto; and (2) they

17 will not be permitted to keep any confidential information unless they sign the

18 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

19 agreed by the Designating Party or ordered by the court. Pages of transcribed

20 deposition testimony or exhibits to depositions that reveal Protected Material may

21 be separately bound by the court reporter and may not be disclosed to anyone except

22 as permitted under this Stipulated Protective Order; and

23 (i) any mediator or settlement officer, and their supporting personnel,

24 mutually agreed upon by any of the parties engaged in settlement discussions.

25

26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

27 IN OTHER LITIGATION

1 that compels disclosure of any information or items designated in this Action as

2 “CONFIDENTIAL,” that Party must:

3 (a) promptly notify in writing the Designating Party. Such notification

4 shall include a copy of the subpoena or court order;

5 (b) promptly notify in writing the party who caused the subpoena or order

6 to issue in the other litigation that some or all of the material covered by the

7 subpoena or order is subject to this Protective Order. Such notification shall include

8 a copy of this Stipulated Protective Order; and

9 (c) cooperate with respect to all reasonable procedures sought to be

10 pursued by the Designating Party whose Protected Material may be affected.

11 If the Designating Party timely seeks a protective order, the Party served with

12 the subpoena or court order shall not produce any information designated in this

13 action as “CONFIDENTIAL” before a determination by the court from which the

14 subpoena or order issued, unless the Party has obtained the Designating Party’s

15 permission. The Designating Party shall bear the burden and expense of seeking

16 protection in that court of its confidential material and nothing in these provisions

17 should be construed as authorizing or encouraging a Receiving Party in this Action

18 to disobey a lawful directive from another court.

19

20 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

21 PRODUCED IN THIS LITIGATION

22 (a) The terms of this Order are applicable to information produced by a

23 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

24 produced by Non-Parties in connection with this litigation is protected by the

25 remedies and relief provided by this Order. Nothing in these provisions should be

26 construed as prohibiting a Non-Party from seeking additional protections.

27 (b) In the event that a Party is required, by a valid discovery request, to

1 subject to an agreement with the Non-Party not to produce the Non-Party’s

2 confidential information, then the Party shall:

3 (1) promptly notify in writing the Requesting Party and the Non-Party

4 that some or all of the information requested is subject to a confidentiality

5 agreement with a Non-Party;

6 (2) promptly provide the Non-Party with a copy of the Stipulated

7 Protective Order in this Action, the relevant discovery request(s), and a reasonably

8 specific description of the information requested; and

9 (3) make the information requested available for inspection by the

10 Non-Party, if requested.

11 (c) If the Non-Party fails to seek a protective order from this court within

12 14 days of receiving the notice and accompanying information, the Receiving Party

13 may produce the Non-Party’s confidential information responsive to the discovery

14 request. If the Non-Party timely seeks a protective order, the Receiving Party shall

15 not produce any information in its possession or control that is subject to the

16 confidentiality agreement with the Non-Party before a determination by the court.

17 Absent a court order to the contrary, the Non-Party shall bear the burden and

18 expense of seeking protection in this court of its Protected Material.

19

20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

22 Protected Material to any person or in any circumstance not authorized under this

23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

24 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

25 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

26 persons to whom unauthorized disclosures were made of all the terms of this Order,

27 and (d) request such person or persons to execute the “Acknowledgment and

1

2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

3 PROTECTED MATERIAL

4 When a Producing Party gives notice to Receiving Parties that certain

5 inadvertently produced material is subject to a claim of privilege or other protection,

6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever

8 procedure may be established in an e-discovery order that provides for production

9 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

10 (e), insofar as the parties reach an agreement on the effect of disclosure of a

11 communication or information covered by the attorney-client privilege or work

12 product protection, the parties may incorporate their agreement in the stipulated

13 protective order submitted to the court.

14

15 12. MISCELLANEOUS

16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

17 person to seek its modification by the Court in the future.

18 12.2 Right to Assert Other Objections. By stipulating to the entry of this

19 Protective Order, no Party waives any right it otherwise would have to object to

20 disclosing or producing any information or item on any ground not addressed in this

21 Stipulated Protective Order. Similarly, no Party waives any right to object on any

22 ground to use in evidence of any of the material covered by this Protective Order.

23 12.3 Filing Protected Material. A Party that seeks to file under seal any

24 Protected Material must comply with Local Civil Rule 79-5. Protected Material

25 may only be filed under seal pursuant to a court order authorizing the sealing of the

26 specific Protected Material at issue. If a Party’s request to file Protected Material

27 under seal is denied by the court, then the Receiving Party may file the information

1

2 13. FINAL DISPOSITION

3 After the final disposition of this Action, as defined in paragraph 4, within 60

4 days of a written request by the Designating Party, each Receiving Party must return

5 all Protected Material to the Producing Party or destroy such material. As used in

6 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

7 summaries, and any other format reproducing or capturing any of the Protected

8 Material. Whether the Protected Material is returned or destroyed, the Receiving

9 Party must submit a written certification to the Producing Party (and, if not the same

10 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

11 (by category, where appropriate) all the Protected Material that was returned or

12 destroyed and (2) affirms that the Receiving Party has not retained any copies,

13 abstracts, compilations, summaries or any other format reproducing or capturing any

14 of the Protected Material. Notwithstanding this provision, Counsel are entitled to

15 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

16 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

17 reports, attorney work product, and consultant and expert work product, even if such

18 materials contain Protected Material. Any such archival copies that contain or

19 constitute Protected Material remain subject to this Protective Order as set forth in

20 Section 4 (DURATION).

21

22

23

24

25

26

27

1 14. VIOLATION

2 Any violation of this Order may be punished by appropriate measures including,

3 without limitation, contempt proceedings and/or monetary sanctions.

4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

5

6 DATED: June 11, 2021

7 /s/ Sara D. Avila

By: Sara D. Avila

8 Attorney for Plaintiff AMY LORENTZEN

9

10

DATED: June 11, 2021

11

/s/ Jacob M. Harper

12 By: Jacob M. Harper

DAVIS WRIGHT TREMAINE LLP

13

Attorney for Defendant THE KROGER CO.

14

15

16 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

17

18 DATED:___J_u_n_e _1_6_, _2_0_2_1___________

19

20 _____/_s/_ -_R_o_z_e_l_la_ _A_._ O__li_v_e_r_______________

HON. ROZELLA A. OLIVER

21 United States Magistrate Judge

22

23

24

25

26

27

1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

4 I, _____________________________ [print or type full name], of

5 _________________ [print or type full address], declare under penalty of perjury

6 that I have read in its entirety and understand the Stipulated Protective Order that

7 was issued by the United States District Court for the Central District of California

8 on [date] in the case of Lorentzen v. The Kroger Company, Case No. 2:20-cv-06754-

9 SB-RAO (C.D. Cal.). I agree to comply with and to be bound by all the terms of

10 this Stipulated Protective Order and I understand and acknowledge that failure to so

11 comply could expose me to sanctions and punishment in the nature of contempt. I

12 solemnly promise that I will not disclose in any manner any information or item that

13 is subject to this Stipulated Protective Order to any person or entity except in strict

14 compliance with the provisions of this Order.

15 I further agree to submit to the jurisdiction of the United States District Court for the

16 Central District of California for enforcing the terms of this Stipulated Protective

17 Order, even if such enforcement proceedings occur after termination of this action.

18 I hereby appoint __________________________ [print or type full name] of

19 _______________________________________ [print or type full address and

20 telephone number] as my California agent for service of process in connection with

21 this action or any proceedings related to enforcement of this Stipulated Protective

22 Order.

23 Date: ______________________________________

24 City and State where sworn and signed: _________________________________

25

26 Printed name: _______________________________

27