Michelle Smith v. Garfield Beach CVS, LLC

Case 2:22-cv-03834-ODW-MAR Document 20 Filed 10/31/22 Page1of14 Page ID #:246

Marissa A. Warren, Esq., State Bar No. 249583

Email: powarren dte-com)

Edward J. Reid, Esq. State Bar No. 276872

Email: ereid@ljdfa.com

LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES

2677 North Main Street, Suite 901

Santa Ana, California 92705-6632 _

Telephone (714) 558-7008 « Facsimile (714) 972-0379

Attorneys for Defendant,

GARFIELD BEACH CVS, L.L.C., erroneously sued and

served as CVS PHARMACY, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA — WESTERN DIVISION

MICHELLE SMITH, CASE NO.: 2:22-cv-03834-ODW-MARx

[Removal from Superior Court of California, Los Angeles,

Case No.: 22STCV08169]

Plaintiff,

VS.

STIPULATED PROTECTIVE

ORDER

GARFIELD BEACH CVS, LLC, et

al., ACTION FILED: March 7, 2022

Defendants.

1. A. PURPOSES AND LIMITATIONS

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

or private information for which special protection from public disclosure and from use

for any purpose other than prosecuting this litigation may be warranted. Accordingly,

the parties hereby stipulate to and petition the Court to enter the following Stipulated

Protective Order. The parties acknowledge that this Order does not confer blanket

protections on all disclosures or responses to discovery and that the protection it affords

from public disclosure and use extends only to the limited information or items that are

entitled to confidential treatment under the applicable legal principles.

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STIPULATED PROTECTIVE ORDER

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B. GOOD CAUSE STATEMENT

This action is likely to involve trade secrets and other valuable research,

development, commercial, financial, technical and/or proprietary information for which

special protection from public disclosure and from use for any purpose other than

prosecution of this action is warranted. Such confidential and proprietary materials and

information consist of, among other things, confidential business or financial

information, information regarding confidential business practices, or other confidential

research, development, or commercial information (including information implicating

privacy rights of third parties), information otherwise generally unavailable to the public,

or which may be privileged or otherwise protected from disclosure under state or federal

statutes, court rules, case decisions, or common law. Further, this action will involve

surveillance footage involved non-party customers refilling prescriptions. In the interest

of the privacy rights of these non-parties, the videos and the above-referenced

information should not be disseminated to the public. Accordingly, to expedite the flow

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

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

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

material in preparation for and in the conduct of trial, to address their handling at the end

of the litigation, and serve the ends of justice, a protective order for such information is

justified in this matter. It is the intent of the parties that information will not be designated

as confidential for tactical reasons and that nothing be so designated without a good faith

belief that it has been maintained in a confidential, non-public manner, and there is good

cause why it should not be part of the public record of this case.

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

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

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

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

standards that will be applied when a party seeks permission from the court to file

STIPULATED PROTECTIVE ORDER

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material under seal.

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

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

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

of Honolulu, 447 F.3d 1172, 1176 (9th Cir_2006); Phillips v. Gen. Motors Corp., 307

E.3d 1206, 1210-11 (9th Cir_2002); Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D.

576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause

showing), and a specific showing of good cause or compelling reasons with proper

evidentiary support and legal justification, must be made with respect to Protected

Material that a party seeks to file under seal. The parties’ mere designation of Disclosure

or Discovery Material as CONFIDENTIAL does not—without the submission of

competent evidence by declaration, establishing that the material sought to be filed under

seal qualifies as confidential, privileged, or otherwise protectable—constitute good

cause.

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

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

sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos

v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir_2010). For each item or type

of information, document, or thing sought to be filed or introduced under seal in

connection with a dispositive motion or trial, the party seeking protection must articulate

compelling reasons, supported by specific facts and legal justification, for the requested

sealing order. Again, competent evidence supporting the application to file documents

under seal must be provided by declaration.

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

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

documents can be redacted, then a redacted version for public viewing, omitting only the

confidential, privileged, or otherwise protectable portions of the document shall be filed.

Any application that seeks to file documents under seal in their entirety should include

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an explanation of why redaction is not feasible.

2. DEFINITIONS

2.1 Action: MICHELLE SMITH V. GARFIELD BEACH CVS, L.L.C., erroneously

sued and served as CVS PHARMACY, INC.; Case No. 2:22-cv-03834-SK.

2.2 Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

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

is generated, stored, or maintained) or tangible things that qualify for protection under

Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

Statement.

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

support staff).

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

that it produces in disclosures or in responses to discovery as

“CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other

things, testimony, transcripts, and tangible things) that are produced or generated in

disclosures or responses to discovery in this matter,

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

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

expert witness or as a consultant in this Action.

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

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

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

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

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

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

4.

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

on behalf of that party and includes support staff.

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

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

support staffs).

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

Material in this Action.

2.13 Professional Vendors: persons or entities that provide litigation support

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

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

their employees and subcontractors.

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

as “CONFIDENTIAL.”

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from

a Producing Party.

3. SCOPE

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

Material (as defined above), but also (1) any information copied or extracted from

Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

Material; and (3) any testimony, conversations, or presentations by Parties or their

Counsel that might reveal Protected Material.

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

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

4. DURATION

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

or maintained pursuant to this protective order used or introduced as an exhibit at trial

becomes public and will be presumptively available to all members of the public,

including the press, unless compelling reasons supported by specific factual findings to

STIPULATED PROTECTIVE ORDER

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proceed otherwise are made to the trial judge in advance of the trial. See Kamakana, 447

F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents produced

in discovery from “compelling reasons” standard when merits-related documents are part

of court record). Accordingly, the terms of this protective order do not extend beyond

the commencement of the trial.

5. DESIGNATING PROTECTED MATERIAL

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

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

Order must take care to limit any such designation to specific material that qualifies under

the appropriate standards. The Designating Party must designate for protection only

those parts of material, documents, items or oral or written communications that qualify

so that other portions of the material, documents, items, or communications for which

protection is not warranted are not swept unjustifiably within the ambit of this Order.

Mass, indiscriminate, or routinized designations are prohibited. Designations that

are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

to unnecessarily encumber the case development process or to impose unnecessary

expenses and burdens on other parties) may expose the Designating Party to sanctions.

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

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

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

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

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

ordered, Disclosure or Discovery Material that qualifies for protection under this Order

must be clearly so designated before the material is disclosed or produced.

Designation in conformity with this Order requires:

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

excluding transcripts of depositions or other pretrial or trial proceedings), that the

Producing Party affix at a minimum, the legend

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

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

protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,

by making appropriate markings in the margins).

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

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

documents it would like copied and produced. During the inspection and before the

designation, all of the material made available for inspection shall be deemed

“CONFIDENTIAL.” After the inspecting Party has identified the documents, it wants

copied and produced, the Producing Party must determine which documents, or portions

thereof, qualify for protection under this Order. Then, before producing the specified

documents, the Producing Party must affix the

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

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

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

margins).

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

Disclosure or Discovery Material on the record, before the close of the deposition all

protected testimony.

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

other tangible items, that the Producing Party affix in a prominent place on the exterior

of the container or containers in which the information is stored the legend

“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

the Producing Party, to the extent practicable, shall identify the protected portion(s).

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

designate qualified information or items does not, standing alone, waive the Designating

Party’s right to secure protection under this Order for such material. Upon timely

correction of a designation, the Receiving Party must make reasonable efforts to assure

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that the material is treated in accordance with the provisions of this Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

of confidentiality at any time that is consistent with the Court’s Scheduling Order.

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

process under Local Rule 37.1 et seq.

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

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

to harass or impose unnecessary expenses and burdens on other parties) may expose the

Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

the confidentiality designation, all parties shall continue to afford the material in question

the level of protection to which it is entitled under the Producing Party’s designation until

the Court rules on the challenge.

7. ACCESS TO AND USE OF PROTECTED MATERIAL

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

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

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

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

described in this Order. When the Action has been terminated, a Receiving Party must

comply with the provisions of section 13 below (FINAL DISPOSITION).

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

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

authorized under this Order.

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

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

may disclose any information or item designated

“CONFIDENTIAL” only to:

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

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

disclose the information for this Action;

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

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

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

reasonably necessary for this Action and who have signed the

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

(d) the court and its personnel;

(e) court reporters and their staff;

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

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

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

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

or other person who otherwise possessed or knew the information;

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

to whom disclosure is reasonably necessary provided: (1) the deposing party requests that

the witness sign the form attached as Exhibit A hereto; and (2) they will not be permitted

to keep any confidential information unless they sign the

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

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

testimony or exhibits to depositions that reveal Protected Material may be separately

bound by the court reporter and may not be disclosed to anyone except as permitted under

this Stipulated Protective Order; and

(1) any mediator or settlement officer, and their supporting personnel, mutually

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

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation that

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

“CONFIDENTIAL,” that Party must:

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

include a copy of the subpoena or court order;

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

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

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

copy of this Stipulated Protective Order; and

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

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

subpoena or court order shall not produce any information designated in this action as

“CONFIDENTIAL” before a determination by the court from which the subpoena or

order issued, unless the Party has obtained the Designating Party’s permission. The

Designating Party shall bear the burden and expense of seeking protection in that court

of its confidential material and nothing in these provisions should be construed as

authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

from another court.

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

IN THIS LITIGATION

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

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

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

and relief provided by this Order. Nothing in these provisions should be construed as

prohibiting a Non-Party from seeking additional protections.

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

Non-Party’s confidential information in its possession, and the Party is subject to an

agreement with the Non-Party not to produce the Non-Party’s confidential information,

NO

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then the Party shall:

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

some or all of the information requested is subject to a confidentiality agreement with a

Non-Party;

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

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

description of the information requested; and

(3) make the information requested available for inspection by the Non-

Party, if requested.

(c) If the Non-Party fails to seek a protective order from this court within 14 days

of receiving the notice and accompanying information, the Receiving Party may produce

the Non-Party’s confidential information responsive to the discovery request. If the Non-

Party timely seeks a protective order, the Receiving Party shall not produce any

information in its possession or control that is subject to the confidentiality agreement

with the Non-Party before a determination by the court. Absent a court order to the

contrary, the Non-Party shall bear the burden and expense of seeking protection in this

court of its Protected Material.

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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

whom unauthorized disclosures were made of all the terms of this Order, and (d) request

such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

that is attached hereto as Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

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

produced material is subject to a claim of privilege or other protection, the obligations of

the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

This provision is not intended to modify whatever procedure may be established in an e-

discovery order that provides for production without prior privilege review. Pursuant to

Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

effect of disclosure of a communication or information covered by the attorney-client

privilege or work product protection, the parties may incorporate their agreement in the

stipulated protective order submitted to the court.

12. MISCELLANEOUS

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

to seek its modification by the Court in the future.

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

Order, no Party waives any right it otherwise would have to object to disclosing or

producing any information or item on any ground not addressed in this Stipulated

Protective Order. Similarly, no Party waives any right to object on any ground to use in

evidence of any of the material covered by this Protective Order.

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

Material must comply with Local Civil Rule 79-5. Protected Material may only be filed

under seal pursuant to a court order authorizing the sealing of the specific Protected

Material at issue. If a Party’s request to file Protected Material under seal is denied by

the court, then the Receiving Party may file the information in the public record unless

otherwise instructed by the court.

13. FINAL DISPOSITION

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

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

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

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

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

Whether the Protected Material is returned or destroyed, the Receiving Party must submit

a written certification to the Producing Party (and, if not the same person or entity, to the

Designating Party) by the 60 day deadline that (1) identifies (by category, where

appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

the Receiving Party has not retained any copies, abstracts, compilations, summaries or

any other format reproducing or capturing any of the Protected Material. Notwithstanding

this provision, Counsel are entitled to retain an archival copy of all pleadings, motion

papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

deposition and trial exhibits, expert reports, attorney work product, and consultant and

expert work product, even if such materials contain Protected Material. Any such

archival copies that contain or constitute Protected Material remain subject to this

Protective Order as set forth in Section 4 (DURATION).

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STIPULATED PROTECTIVE ORDER

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14. VIOLATION

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

without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED October 3, 2022

Attéfmeys for Plaintiff

MICHELLE SMITH

DATED:___ October 7, 2022

_ ears OO

Attorneys for Defendant

GARFIELD BEACH CVS, L.L.C., erroneously

sued and served as CVS PHARMACY, INC.

FOR GOOD CAUSE SHOWN, IT IS SOORDERED.

DATED: 10/31/2022

/S/

HON. MARGO A. ROCCONI

United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER