The opinion
Case 8:21-cv-00796-JLS-KES Document 32 Filed 03/02/22 Page 1 of 16 Page ID #:379
David Mara, Esq. (230498)
1 Jill Vecchi, Esq. (299333)
MARA LAW FIRM, PC
2 2650 Camino Del Rio North Suite 205
San Diego, California 92108
3 Telephone: (619) 234-2833
Facsimile: (619) 234-4048
4
Mohamed Eldessouky, Esq. (SBN: 289955)
5 ELDESSOUKY LAW
17139 Bellflower Blvd, Suite 202
6 Bellflower, California 92808
Telephone: (562) 461-0995
7 Facsimile: (562) 461-0998
8 Attorneys for Plaintiff, Omar Rosales
9 Additional Counsel Listed on Next Page
10
11 UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA
13
14 SOUTHERN DIVISION
15
OMAR ROSALES on behalf of Case No. 8:21-cv-00796-JLS-KES
16 himself, all others similarly situated,
and on behalf of the general public, [Discovery Document: Referred to
17 Magistrate Judge Karen E. Scott]
Plaintiffs,
18
v. STIPULATED PROTECTIVE
19 ORDER
20 THE KROGER CO.; and DOES 1-
100, inclusive,
21 Complaint Filed: March 24, 2021
Action Removed: April 28, 2021
22 Defendants. Final Trial Conference: June 16, 2023
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Nate J. Kowalski, Esq. (SBN 181136)
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Amber S. Healy, Esq. (SBN 232730)
2 Lauren S. Gafa (SBN: 316896)
ATKINSON, ANDELSON, LOYA, RUUD & ROMO
3
12800 Center Court Drive South, Suite 300
4 Cerritos, California 90703-9364
5 TEL: (562) 653-3200
FAX: (562) 653-3333
6
7 Attorneys for Defendant, The Kroger Co.
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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. The parties further acknowledge, as set forth
11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
12 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the court to file material under seal.
15 B. GOOD CAUSE STATEMENT
16 This is a wage and hour class action. Plaintiff has requested the names,
17 addresses, phone numbers, email addresses, job titles, and dates of employment for
18 all putative class members. Defendant The Kroger Co. has objected to the disclosure
19 of this information on the basis of privacy. The Parties have agreed to the production
20 of this information subject to this protective order. Other courts have found that a
21 standard protective order is sufficient to protect the privacy rights of putative class
22 members. See Amaraut v. Sprint/United Mgmt. Co., 2020 U.S. Dist. LEXIS 7558
23 (S.D. Cal. Jan. 14, 2020); Hernandez v. Best Buy Co., 2014 U.S. Dist. LEXIS
24 147630 (S.D. Cal. Oct. 15, 2014); LaCross v. Knight Transp., Inc., 2015 U.S. Dist.
25 LEXIS 195307 (C.D. Cal. May 19, 2015).
26 To expedite the flow of this information, to facilitate the prompt resolution
27 of the parties’ dispute over confidentiality of the class contact information, to
28 adequately protect information the parties are entitled to keep confidential, to ensure
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1 that the parties are permitted reasonable necessary uses of such material in
2 preparation for Plaintiff’s motion for class certification and for and in the conduct
3 of trial, to address their handling at the end of the litigation, and serve the ends of
4 justice, a protective order for such information is justified in this matter. It is the
5 intent of the parties that information will not be designated as confidential for
6 tactical reasons and that nothing be so designated without a good faith belief that it
7 has been maintained in a confidential, non-public manner, and there is good cause
8 why it should not be part of the public record of this case.
9 2. DEFINITIONS
10 2.1 Action: Omar Rosales v. The Kroger Co. (Central District of
11 California, Case No. 8:21-cv-00796-JLS-KES).
12 2.2 Challenging Party: a Party or Non-Party that challenges the
13 designation of information or items under this Order.
14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
15 how it is generated, stored or maintained) or tangible things that qualify for
16 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
17 the Good Cause Statement.
18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
19 their support staff).
20 2.5 Designating Party: a Party or Non-Party that designates information
21 or items that it produces in disclosures or in responses to discovery as
22 “CONFIDENTIAL.”
23 2.6 Disclosure or Discovery Material: all items or information,
24 regardless of the medium or manner in which it is generated, stored, or maintained
25 (including, among other things, testimony, transcripts, and tangible things), that are
26 produced or generated in disclosures or responses to discovery in this matter.
27 2.7 Expert: a person with specialized knowledge or experience in a
28 matter pertinent to the litigation who has been retained by a Party or its counsel to
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1 serve as an expert witness or as a consultant in this Action.
2 2.8 House Counsel: attorneys who are employees of a party to this
3 Action. House Counsel does not include Outside Counsel of Record or any other
4 outside counsel.
5 2.9 Non-Party: any natural person, partnership, corporation, association,
6 or other legal entity not named as a Party to this action.
7 2.10 Outside Counsel of Record: attorneys who are not employees of a
8 party to this Action but are retained to represent or advise a party to this Action and
9 have appeared in this Action on behalf of that party or are affiliated with a law firm
10 which has appeared on behalf of that party, and includes support staff.
11 2.11 Party: any party to this Action, including all of its officers, directors,
12 employees, consultants, retained experts, and Outside Counsel of Record (and their
13 support staffs).
14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
15 Discovery Material in this Action.
16 2.13 Professional Vendors: persons or entities that provide litigation
17 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
18 demonstrations, and organizing, storing, or retrieving data in any form or medium)
19 and their employees and subcontractors.
20 2.14 Protected Material: any Disclosure or Discovery Material that is
21 designated as “CONFIDENTIAL.”
22 2.15 Receiving Party: a Party that receives Disclosure or Discovery
23 Material from a Producing Party.
24 3. SCOPE
25 The protections conferred by this Stipulation and Order cover not only
26 Protected Material (as defined above), but also (1) any information copied or
27 extracted from Protected Material; (2) all copies, excerpts, summaries, or
28 compilations of Protected Material; and (3) any testimony, conversations, or
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1 presentations by Parties or their Counsel that might reveal Protected Material.
2 Any use of Protected Material at trial shall be governed by the orders of the
3 trial judge. This Order does not govern the use of Protected Material at trial.
4 4. DURATION
5 Even after final disposition of this litigation, the confidentiality obligations
6 imposed by this Order shall remain in effect until a Designating Party agrees
7 otherwise in writing or a court order otherwise directs. Final disposition shall be
8 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
9 with or without prejudice; and (2) final judgment herein after the completion and
10 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
11 including the time limits for filing any motions or applications for extension of time
12 pursuant to applicable law.
13 5. DESIGNATING PROTECTED MATERIAL
14 5.1 Exercise of Restraint and Care in Designating Material for Protection.
15 Each Party or Non-Party that designates information or items for protection
16 under this Order must take care to limit any such designation to specific material
17 that qualifies under the appropriate standards. The Designating Party must
18 designate for protection only those parts of material, documents, items, or oral or
19 written 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 impose
25 unnecessary expenses and burdens on other parties) may expose the Designating
26 Party to sanctions.
27 If it comes to a Designating Party’s attention that information or items that it
28 designated for protection do not qualify for protection, that Designating Party must
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1 promptly notify all other Parties that it is withdrawing the inapplicable designation.
2 5.2 Manner and Timing of Designations. Except as otherwise provided in
3 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
4 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
5 under this Order must be clearly so designated before the material is disclosed or
6 produced.
7 Designation in conformity with this Order requires:
8 (a) for information in documentary form (e.g., paper or electronic
9 documents, but excluding transcripts of depositions or other pretrial or trial
10 proceedings), that the Producing Party affix at a minimum, the legend
11 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
12 contains protected material. If only a portion or portions of the material on a page
13 qualifies for protection, the Producing Party also must clearly identify the protected
14 portion(s) (e.g., by making appropriate markings in the margins).
15 A Party or Non-Party that makes original documents available for inspection
16 need not designate them for protection until after the inspecting Party has indicated
17 which documents it would like copied and produced. During the inspection and
18 before the designation, all of the material made available for inspection shall be
19 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
20 documents, it wants copied and produced, the Producing Party must determine
21 which documents, or portions thereof, qualify for protection under this Order. Then,
22 before producing the specified documents, the Producing Party must affix the
23 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
24 portion or portions of the material on a page qualifies for protection, the Producing
25 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
26 markings in the margins).
27 (b) for testimony given in depositions that the Designating Party
28 identify the Disclosure or Discovery Material on the record, before the close of the
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1 deposition all protected testimony.
2 (c) for information produced in some form other than documentary
3 and for any other tangible items, that the Producing Party affix in a prominent place
4 on the exterior of the container or containers in which the information is stored the
5 legend “CONFIDENTIAL.” If only a portion or portions of the information
6 warrants protection, the Producing Party, to the extent practicable, shall identify the
7 protected portion(s).
8 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
9 failure to designate qualified information or items does not, standing alone, waive
10 the Designating Party’s right to secure protection under this Order for such material.
11 Upon timely correction of a designation, the Receiving Party must make reasonable
12 efforts to assure that the material is treated in accordance with the provisions of this
13 Order.
14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
16 designation of confidentiality at any time that is consistent with the Court’s
17 Scheduling Order.
18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
19 resolution process under Local Rule 37.1 et seq. or follow the procedures for
20 informal, telephonic discovery hearings on the Court's website.
21 6.3 For disputes regarding the designation of confidential information, the
22 procedure for obtaining a decision from the Court is that set forth in Local Rule 37.
23 The burden of persuasion in any such challenge proceeding shall be on the
24 Designating Party. Frivolous challenges, and those made for an improper purpose
25 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
26 expose the Challenging Party to sanctions. Unless the Designating Party has waived
27 or withdrawn the confidentiality designation, all parties shall continue to afford the
28 material in question the level of protection to which it is entitled under the
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1 Producing Party’s designation until the Court rules on the challenge.
2 7. ACCESS TO AND USE OF PROTECTED MATERIAL
3 7.1 Basic Principles. A Receiving Party may use Protected Material that is
4 disclosed or produced by another Party or by a Non-Party in connection with this
5 Action only for prosecuting, defending, or attempting to settle this Action. Such
6 Protected Material may be disclosed only to the categories of persons and under the
7 conditions described in this Order. When the Action has been terminated, a
8 Receiving Party must comply with the provisions of section 13 below (FINAL
9 DISPOSITION).
10 Protected Material must be stored and maintained by a Receiving Party at a
11 location and in a secure manner that ensures that access is limited to the persons
12 authorized under this Order.
13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
14 otherwise ordered by the court or permitted in writing by the Designating Party, a
15 Receiving Party may disclose any information or item designated
16 “CONFIDENTIAL” only to:
17 (a) the Receiving Party’s Outside Counsel of Record in this Action,
18 as well as employees of said Outside Counsel of Record to whom it is reasonably
19 necessary to disclose the information for this Action;
20 (b) the officers, directors, and employees (including House
21 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
22 Action;
23 (c) Experts (as defined in this Order) of the Receiving Party to
24 whom disclosure is reasonably necessary for this Action and who have signed the
25 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (d) the court and its personnel;
27 (e) court reporters and their staff;
28 (f) professional jury or trial consultants, mock jurors, and
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1 Professional Vendors to whom disclosure is reasonably necessary for this Action
2 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
3 A);
4 (g) the author or recipient of a document containing the information
5 or a custodian or other person who otherwise possessed or knew the information;
6 (h) during their depositions, witnesses, and attorneys for witnesses,
7 in the Action to whom disclosure is reasonably necessary provided: (1) the deposing
8 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
9 they will not be permitted to keep any confidential information unless they sign the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
11 agreed by the Designating Party or ordered by the court. Pages of transcribed
12 deposition testimony or exhibits to depositions that reveal Protected Material may
13 be separately bound by the court reporter and may not be disclosed to anyone except
14 as permitted under this Stipulated Protective Order; and
15 (i) any mediator or settlement officer, and their supporting
16 personnel, mutually agreed upon by any of the parties engaged in settlement
17 discussions.
18 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
19 IN OTHER LITIGATION
20 If a Party is served with a subpoena or a court order issued in other litigation
21 that compels disclosure of any information or items designated in this Action as
22 “CONFIDENTIAL,” that Party must:
23 (a) promptly notify in writing the Designating Party. Such
24 notification shall include a copy of the subpoena or court order;
25 (b) promptly notify in writing the party who caused the subpoena or
26 order to issue in the other litigation that some or all of the material covered by the
27 subpoena or order is subject to this Protective Order. Such notification shall include
28 a copy of this Stipulated Protective Order; and
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1 (c) cooperate with respect to all reasonable procedures sought to be
2 pursued by the Designating Party whose Protected Material may be affected.
3 If the Designating Party timely seeks a protective order, the Party served with
4 the subpoena or court order shall not produce any information designated in this
5 action as “CONFIDENTIAL” before a determination by the court from which the
6 subpoena or order issued, unless the Party has obtained the Designating Party’s
7 permission. The Designating Party shall bear the burden and expense of seeking
8 protection in that court of its confidential material and nothing in these provisions
9 should be construed as authorizing or encouraging a Receiving Party in this Action
10 to disobey a lawful directive from another court.
11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
12 PRODUCED IN THIS LITIGATION
13 (a) The terms of this Order are applicable to information produced
14 by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such
15 information produced by Non-Parties in connection with this litigation is protected
16 by the remedies and relief provided by this Order. Nothing in these provisions
17 should be construed as prohibiting a Non-Party from seeking additional protections.
18 (b) In the event that a Party is required, by a valid discovery request,
19 to produce a Non-Party’s confidential information in its possession, and the Party
20 is subject to an agreement with the Non-Party not to produce the Non-Party’s
21 confidential information, then the Party shall:
22 (1) promptly notify in writing the Requesting Party and the Non-
23 Party that some or all of the information requested is subject to a confidentiality
24 agreement with a Non-Party;
25 (2) promptly provide the Non-Party with a copy of the Stipulated
26 Protective Order in this Action, the relevant discovery request(s), and a reasonably
27 specific description of the information requested; and
28 (3) make the information requested available for inspection by the
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1 Non-Party, if requested.
2 (c) If the Non-Party fails to seek a protective order from this court
3 within 14 days of receiving the notice and accompanying information, the
4 Receiving Party may produce the Non-Party’s confidential information responsive
5 to the discovery request. If the Non-Party timely seeks a protective order, the
6 Receiving Party shall not produce any information in its possession or control that
7 is subject to the confidentiality agreement with the Non-Party before a
8 determination by the court. Absent a court order to the contrary, the Non-Party
9 shall bear the burden and expense of seeking protection in this court of its Protected
10 Material.
11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
13 Protected Material to any person or in any circumstance not authorized under this
14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person
17 or persons to whom unauthorized disclosures were made of all the terms of this
18 Order, and (d) request such person or persons to execute the “Acknowledgment and
19 Agreement to Be Bound” that is attached hereto as Exhibit A.
20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
21 PROTECTED MATERIAL
22 When a Producing Party gives notice to Receiving Parties that certain
23 inadvertently produced material is subject to a claim of privilege or other protection,
24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
26 procedure may be established in an e-discovery order that provides for production
27 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
28 (e), insofar as the parties reach an agreement on the effect of disclosure of a
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1 communication or information covered by the attorney-client privilege or work
2 product protection, the parties may incorporate their agreement in the stipulated
3 protective order submitted to the court.
4 12. MISCELLANEOUS
5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
6 person to seek its modification by the Court in the future.
7 12.2 Right to Assert Other Objections. By stipulating to the entry of this
8 Protective Order no Party waives any right it otherwise would have to object to
9 disclosing or producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to object on any
11 ground to use in evidence of any of the material covered by this Protective Order.
12 12.3 Filing Protected Material. A Party that seeks to file under seal any
13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the
15 specific Protected Material at issue. Pending the ruling on the application, the
16 papers or portions thereof subject to the sealing application shall be lodged under
17 seal. If a Party's request to file Protected Material under seal is denied by the court,
18 then the Receiving Party may file the information in the public record unless
19 otherwise instructed by the court.
20 13. FINAL DISPOSITION
21 After the final disposition of this Action, as defined in paragraph 4, within 60
22 days of a written request by the Designating Party, each Receiving Party must return
23 all Protected Material to the Producing Party or destroy such material. As used in
24 this subdivision, “all Protected Material” includes all copies, abstracts,
25 compilations, summaries, and any other format reproducing or capturing any of the
26 Protected Material. Whether the Protected Material is returned or destroyed, the
27 Receiving Party must submit a written certification to the Producing Party (and, if
28 not the same person or entity, to the Designating Party) by the 60 day deadline that
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1 (1) identifies (by category, where appropriate) all the Protected Material that was
2 returned or destroyed and (2) affirms that the Receiving Party has not retained any
3 copies, abstracts, compilations, summaries or any other format reproducing or
4 capturing any of the Protected Material. Notwithstanding this provision, Counsel
5 are entitled to retain an archival copy of all pleadings, motion papers, trial,
6 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
7 and trial exhibits, expert reports, attorney work product, and consultant and expert
8 work product, even if such materials contain Protected Material. Any such archival
9 copies that contain or constitute Protected Material remain subject to this Protective
10 Order as set forth in Section 4 (DURATION).
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1||14. Any violation of this Order may be punished by any and all appropriate
2||measures including, without limitation, contempt proceedings and/or monetary
3 || sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
> Dated: March 1, 2022 MARA LAW FIRM PC
7 /s/ Jill Vecchi
David Mara, Esq.
8 Jill Vecchi, Esq.
9 Attorneys for Plaintiff Omar Rosales
10|| Dated: March 1, 2022 ELDESSOUKY LAW
11
D /s/ Mohamed Eldessou
Mohamed Eldessouky, Esq.
13 Attorney for Plaintiff Omar Rosales
14]/ Dated: March 1, 2022 ATKINSON, ANDELSON, LOYA, RUUD
& ROMO
15
16 /s/ Amber S. Healy
17 Amber S. Healy, Esq.
18 Attorneys for Defendant The Kroger Co.
19|) FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
20
71 Dated: March 2, 2022
22 Vern; 6. Scot
73 The Honorable Karen E. Scott
United States Magistrate Judge
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury
that I have read in its entirety and understand the Stipulated Protective Order that
5
was issued by the United States District Court for the Central District of California
6
on [date] in the case of ___________ [insert formal name of the case and the number
7
and initials assigned to it by the court]. I agree to comply with and to be bound by
8
all the terms of this Stipulated Protective Order and I understand and acknowledge
9
that failure to so comply could expose me to sanctions and punishment in the nature
10
of contempt. I solemnly promise that I will not disclose in any manner any
11
information or item that is subject to this Stipulated Protective Order to any person
12
or entity except in strict compliance with the provisions of this Order. I further agree
13
to submit to the jurisdiction of the United States District Court for the Central
14
District of California for the purpose of enforcing the terms of this Stipulated
15 Protective Order, even if such enforcement proceedings occur after termination of
16 this action. I hereby appoint __________________________ [print or type full
17 name] of _______________________________________ [print or type full address
18 and telephone number] as my California agent for service of process in connection
19 with this action or any proceedings related to enforcement of this Stipulated
20 Protective Order.
21
22 Date: ______________________________________
City and State where sworn and signed: _________________________________
23
24
Printed name: _______________________________
25
26
Signature: __________________________________
27
28
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