# Jinhui Kim v. Walmart, Inc.

> District Court, C.D. California · April 19, 2023

URL: https://www.frixlaw.com/law-library/cases/9983020

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 JINHUI KIM, individually and on Case No. 2:22-cv-08380-SB-PVCx
behalf of all others similarly situated,
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DISCOVERY MATTER
12 Plaintiff,
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v. PROTECTIVE ORDER GOVERNING
14 THE DESIGNATION AND HANDLING
15 WALMART INC., OF CONFIDENTIAL MATERIALS
16 Defendant.
NOTE CHANGES IN BOLD MADE BY
17 THE COURT (¶ 19)
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20 To expedite the flow of discovery material, facilitate the prompt resolution of
21 disputes over confidentiality, adequately protect material entitled to be kept
22 confidential, and ensure that protection is limited only to material so entitled,
23 Defendant Walmart Inc. (“Walmart”) and Plaintiff Jinhui Kim (“Plaintiff”)
24 (Defendant and Plaintiff are collectively, the “parties”), by and through their
25 respective counsel, and pursuant to Rule 26(c) and the Federal Rules of Civil
26 Procedure, hereby stipulate and agree to the following Stipulated Protective Order:
27 The parties have agreed to and have submitted to the Court, and for good cause
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1 shown the Court hereby enters, the following Protective Order Governing The
2 Designation And Handling Of Confidential Materials (the “Order” or “Protective
3 Order”):
4 1. This Order shall govern the disclosure of materials designated as
5 Confidential Material in this litigation. Confidential Material, as used in this Order,
6 shall refer to any document or item designated as Confidential or Highly Confidential
7 – Attorneys’ Eyes Only, including but not limited to, documents or items produced
8 during discovery, all copies thereof, and the information contained in such material.
9 Nothing in this Order shall require any party to produce any specific documents or
10 category of documents which a party deems inappropriate for production. This Order
11 shall govern, for pretrial purposes only, the use of Confidential Information produced
12 during discovery in this Action. The Court shall determine how Confidential
13 Information is to be treated at trial. For purposes of this Order, the Designating Party
14 bears the burden of establishing the confidentiality of all such information,
15 documents, materials, or items.
16 Definitions of Confidential Material
17 2. Confidential Material, as used in this Order, consists of the following
18 materials and categories of materials:
19 a. Materials relating to any privileged, confidential, or nonpublic
20 information, related to trade secrets, research, design, development,
21 financial, technical, marketing, planning, personal, or commercial
22 information, as such terms are used in the Federal Rules of Civil
23 Procedure (Fed. R. Civ.) and any applicable case law interpreting Fed.
24 R. Civ. 26(c)(1)(G); contracts; non-public compilations of retail prices;
25 proprietary information; vendor agreements; personnel files;
26 claim/litigation information; and nonpublic policies and procedures shall
27 be deemed Confidential.
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1 b. Confidential Information shall not include information that has been
2 publicly disclosed by any Party prior to the date hereof, or that has been
3 or is as of the date hereto generally available to the public, or that
4 becomes generally available to the public after the date hereof other than
5 as a result of disclosure by the Receiving Party.
6 c. Materials containing corporate trade secrets, nonpublic research and
7 development data, including, but not limited to, cost data, pricing
8 formulas, inventory management programs, and other sales or business
9 information not known to the public; information obtained from a non-
10 party pursuant to a non-disclosure agreement; and customer-related
11 Protected Data shall be deemed Highly Confidential – Attorneys’ Eyes
12 Only. Any designation of Highly Confidential – Attorneys’ Eyes Only
13 designation will require a separate and detailed showing of need.
14 d. Protected Data shall refer to any information that a party believes in
15 good faith to be subject to federal, state or foreign data protection laws
16 or other privacy obligations. Examples of such data protection laws
17 include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C.
18 § 6801 et seq. (financial information); and, The Health Insurance
19 Portability and Accountability Act and the regulations thereunder, 45
20 CFR Part 160 and Subparts A and E of Part 164 (medical information).
21 Certain Protected Data may compel alternative or additional protections
22 beyond those afforded Highly Confidential – Attorneys’ Eyes Only
23 material, in which event the parties shall meet and confer in good faith,
24 and, if unsuccessful, shall move the Court for appropriate relief.
25 3. The parties agree that such Confidential Material as described in
26 paragraph 2 should be given the protection of an order of this Court to prevent injury
27 through disclosure to persons other than those persons involved in the prosecution or
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1 defense of this litigation.
2 Procedure for Designating Information as Confidential
3 4. To designate information as confidential, the producing party shall mark
4 Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Parties shall submit confidential
6 discovery responses, such as answers to interrogatories or answers to requests for
7 admissions, in a separate document stamped with the appropriate legend designating
8 those responses as Confidential Material. The Receiving Party may make copies of
9 Confidential Material and such copies shall become subject to the same protections
10 as the Confidential Material from which those copies were made.
11 a. Information on a disk or other electronic format (e.g., a native format
12 production) may be designated confidential by marking the storage
13 medium itself (or the native file’s title) with the legend
14 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
15 EYES ONLY.” The Receiving Party shall mark any hard-copy printouts
16 and the storage medium of any permissible copies of such electronic
17 material with the corresponding legend contained on the original and such
18 copies shall become subject to the same protections, as the Confidential
19 Material from which those copies were made.
20 b. Information disclosed at any deposition of a party taken in this action may
21 be designated by the party as confidential by indicating on the record at
22 the deposition that the information is confidential and subject to the
23 provisions of this Order. Alternatively, the party may designate
24 information disclosed at the deposition as confidential by notifying the
25 court reporter and other parties in writing, within fifteen (15) business
26 days of receipt of the transcript, of the specific pages and lines of the
27 transcript which are designated as confidential. The parties may agree to
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1 a reasonable extension of the 15-business-day period for designation.
2 Designations of transcripts will apply to audio, video, or other recordings
3 of the testimony. During such 15-business-day period, the entire
4 transcript shall receive confidential treatment. Upon such designation, the
5 court reporter and each party shall affix the “CONFIDENTIAL” or
6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” legend to
7 the designated pages and segregate them as appropriate.
8 c. Mass, indiscriminate, or routinized designations are prohibited.
9 Designations that are shown to be clearly unjustified or that have been
10 made for an improper purpose (e.g., to unnecessarily encumber the case
11 development process or to impose unnecessary expenses and burdens on
12 other parties) may expose the designating party to sanctions.
13 5. A producing party may change the confidentiality designation of
14 materials it has produced, as follows: (1) The producing party must give the receiving
15 parties notice of the change by identifying the documents and information at issue.
16 Once notice is given, the receiving party must make good-faith efforts to ensure that
17 the documents or information are accorded treatment under the new designation. (2)
18 Within a reasonable period after giving notice, the producing party must reproduce
19 the documents or information in a format that contains the new designation. (3) If
20 such information has been disclosed to persons not qualified pursuant to paragraph(s)
21 (12-13) below, the party who disclosed such information shall (a) take reasonable
22 efforts to retrieve previously disclosed Confidential Material; (b) advise such persons
23 that the material is Confidential; and (c) give the producing party written assurance
24 that steps (a) and (b) have been completed.
25 Data Security
26 6. The Parties agree to provide adequate security to protect data produced
27 by the other party(ies) or by non-parties. This includes secure data storage systems,
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1 established security policies, and security training for employees, contractors and
2 experts. Adequate security also includes such measures as data encryption in transit,
3 data encryption at rest, data access controls, and physical security, whether
4 hosted/outsourced to a vendor or on premises. At a minimum, any receiving party
5 subject to the terms of this Confidentiality Order, will provide reasonable measures
6 to protect non-client data consistent with the American Bar Association Standing
7 Committee on Ethics and Professional Responsibility, Formal Opinion 477R.
8 Clawback Provisions
9 7. When a producing party gives notice to receiving party that certain
10 inadvertently produced material is subject to a claim of privilege or other protection,
11 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
12 Procedure 26(b)(5)(B). The Parties agree that the issue of whether the inadvertent
13 disclosure of privileged material shall constitute a waiver shall be governed by
14 Federal Rule of Evidence 502.
15 8. This Order shall be interpreted to provide the maximum protection
16 allowed by Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and
17 granted full faith and credit in all other state and federal proceedings by 28 U.S. Code
18 § 1738. In the event of any subsequent conflict of law, the law that is most protective
19 of privilege and work product shall apply.
20 9. Nothing contained herein is intended to or shall serve to limit a party’s
21 right to conduct a review of documents, ESI or information (including metadata) for
22 relevance, responsiveness and/or segregation of privileged and/or protected
23 information before production.
24 10. If the receiving party has reason to believe that a produced document or
25 other information may reasonably be subject to a claim of privilege, then the receiving
26 party shall immediately sequester the document or information, cease using the
27 document or information and cease using any work product containing the
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1 information, and shall inform the producing party of the beginning BATES number
2 of the document or, if no BATES number is available, shall otherwise inform the
3 producing party of the information.
4 11. A producing party must give written notice to any receiving party
5 asserting a claim of privilege, work-product protection, or other ground for reclaiming
6 documents or information (a “clawback request”). After a clawback request is
7 received, the receiving party shall immediately sequester the document (if not already
8 sequestered) and shall not review or use that document, or any work product
9 containing information taken from that document, for any purpose. The parties shall
10 meet and confer regarding any clawback request.
11 Who May Receive Confidential and Highly Confidential Information
12 12. Confidential Material. Any Confidential Material and the information
13 contained therein shall be disclosed only to the Court, its staff, in-house counsel and
14 outside counsel of record for each party, and also shall be disclosed on a need-to-
15 know basis only to the parties, counsel’s staff personnel, employees of a party to
16 whom disclosure is necessary in connection with the preparation for and trial of this
17 action, and any witnesses in the case (including consulting and testifying experts) as
18 may from time to time reasonably be necessary in prosecution or defense of this
19 action.
20 13. Highly Confidential—Attorneys’ Eyes Only Material. Material and
21 information designated as “Highly Confidential—Attorneys’ Eyes Only” shall only
22 be disclosed to the Court, its staff, in-house and outside counsel of record for each
23 party, the secretarial, clerical, and paralegal staff of each, and consulting and
24 testifying experts retained by a party in this action.
25 14. Persons Receiving Confidential Information Must Sign Exhibit A.
26 Counsel for each party shall advise all persons to whom Confidential Material is
27 disclosed pursuant to this Order of the existence of this Order and shall provide all
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1 such persons (other than the Court and its staff) with a copy of this Order. Counsel
2 shall also require such persons to execute the Affidavit attached as Exhibit A, prior to
3 the disclosure of Confidential Material.
4 15. Duties in the Event of Unauthorized Disclosures. It shall be the
5 obligation of counsel, upon learning of any unauthorized disclosure or threatened
6 unauthorized disclosure of Confidential Information, or any other breach or
7 threatened breach of the provisions of this Order, to promptly notify counsel for the
8 Producing Party. The notification shall be supplemented with reasonable details of
9 the circumstances of the disclosure in order to permit the producing party to
10 understand and take appropriate steps. Each party and its counsel agree to take
11 reasonable and good-faith efforts to contain or limit any breach promptly upon
12 receiving notice of it, and to make reasonable and good-faith attempts to retrieve any
13 unauthorized disclosure of documents or information.
14 Authorized Uses of Confidential Material
15 16. Confidential Material shall only be used for the purpose of litigating the
16 above-captioned lawsuit and may not be used in other lawsuits.
17 17. Persons having knowledge of Confidential Material and information due
18 to their participation in the conduct of this litigation shall use such knowledge and
19 information only as permitted herein, and shall not disclose such Confidential
20 Material, their contents or any portion or summary thereof to any person(s) not
21 involved in the conduct of this litigation. If a party is served with a subpoena or a
22 court order issued in other litigation that compels disclosure of any information or
23 items designated in this Action as “CONFIDENTIAL,” that Party must:
24 (a) promptly notify in writing the designating party. Such notification will
25 include a copy of the subpoena or court order;
26 (b) promptly notify in writing the party who caused the subpoena or order to
27 issue in the other litigation that some or all of the material covered by the subpoena
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1 or order is subject to this Protective Order. Such notification will include a copy of
2 this Stipulated Protective Order; and
3 (c) cooperate with respect to all reasonable procedures sought to be pursued
4 by the designating party whose Protected Material may be affected.
5 If the designating party timely seeks a protective order, the party served with
6 the subpoena or court order will not produce any information designated in this action
7 as “CONFIDENTIAL” before a determination by the court from which the subpoena
8 or order issued, unless the party has obtained the designating party’s permission. The
9 designating party will bear the burden and expense of seeking protection in that court
10 of its confidential material and nothing in these provisions should be construed as
11 authorizing or encouraging a receiving party in this Action to disobey a lawful
12 directive from another court
13 18. If any person having access to the Confidential Material herein shall
14 violate this Order, he/she may be subject to sanctions by the Court and may be liable
15 to pay for the damages caused by his/her violation.
16 Challenges to the Designation of Confidential Material
17 19. Any party or interested member of the public may move the Court to
18 modify the designation of any documents or information produced in this litigation
19 (either to include additional protection with respect to confidentiality or to remove a
20 confidential designation). Before making such a motion, the party or an interested
21 member of the public shall first attempt to resolve such dispute with the producing
22 party’s counsel. If the conference of counsel does not resolve the dispute, the
23 challenging party shall request an informal discovery conference with the
24 Magistrate Judge pursuant to Judge Castillo’s procedures set forth under the
25 “Judges’ Requirements” tab on the Court’s website (http://www.cacd.
26 uscourts.gov/judges-schedules-procedures). Any written motion following an
27 informal discovery conference must comply with the joint stipulation
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1 requirements of Local Rule 37-2. Pending resolution of any challenges to the
2 designation of documents or information, the material at issue shall continue to be
3 treated as Confidential Material until ordered otherwise by the Court. The burden of
4 persuasion in any such challenge proceeding will be on the designating party.
5 Withholding of Information
6 20. Redactions. The parties agree that narrowly tailored redactions are
7 appropriate for information that is privileged or protected from discovery as work
8 product or by reason of any other applicable privilege or immunity. Such privilege
9 redactions will state, over the redacted portion, “Redacted–Privileged”. Redactions
10 of emails will not redact the names of recipients or the subject line of the emails,
11 unless the subject line is itself privileged, in which case only so much of the subject
12 line will be redacted as may be needed. The parties will produce redacted documents
13 in TIFF format (or searchable PDF if production format dictates; or in native format
14 for file types that do not convert well to TIFF/PDF, such as Excel files) with
15 corresponding searchable OCR text and the associated metadata for the document,
16 ensuring the redacted content is fully protected from disclosure.
17 Confidential Material In Filings, Hearings, and Trial
18 21. Confidential Material in Filings. A Party that seeks to file under seal
19 any Protected Material must comply with Civil Local Rule 79-5.
20 22. Confidential Material in Hearings and Trial. The provisions of this
21 Order shall not affect, and this Order does not limit, the admissibility of Confidential
22 Material (or references to that material) as evidence at trial, or during a hearing or
23 similar proceeding in this action. Prior to using Confidential Material or the
24 information contained therein at any hearing that is open to the public, the party
25 seeking to use the Confidential Material must give at least seven (7) days advance
26 notice to the producing party of the intent to use the Confidential Material so that the
27 producing party may seek an appropriate Court Order to protect the Confidential
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1 Material.
2 Continuing Effect of this Order and Duty to Destroy
3 23. Once a case proceeds to trial, all of the information that was designated
4 as confidential or maintained pursuant to this protective order becomes public and
5 will be presumptively available to all members of the public, including the press,
6 unless compelling reasons supported by specific factual findings to proceed otherwise
7 are made to the trial judge in advance of the trial. See Kamakana v. City and County
8 of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
9 showing for sealing documents produced in discovery from “compelling reasons”
10 standard when merits-related documents are part of court record). Accordingly, the
11 terms of this protective order do not extend beyond the commencement of the trial.
12 After the final disposition of this Action, as defined above in this paragraph, within
13 60 days of a written request by the designating party, each receiving party must return
14 all protected material to the producing party or destroy such material. As used in this
15 subdivision, “all protected material” includes all copies, abstracts, compilations,
16 summaries, and any other format reproducing or capturing any of the protected
17 material. Whether the protected material is returned or destroyed, the receiving party
18 must submit a written certification to the producing party (and, if not the same person
19 or entity, to the designating party) by the 60 day deadline that (1) identifies (by
20 category, where appropriate) all the protected material that was returned or destroyed
21 and (2) affirms that the receiving party has not retained any copies, abstracts,
22 compilations, summaries or any other format reproducing or capturing any of the
23 protected material. Notwithstanding this provision, Counsel are entitled to retain an
24 archival copy of all pleadings, motion papers, trial, deposition, and hearing
25 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
26 reports, attorney work product, and consultant and expert work product, even if such
27 materials contain protected material. Any such archival copies that contain or
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1 || constitute protected material remain subject to this Protective Order.
2 Application of this Order to Productions by Third Parties
3 24. This Order may be used by third parties producing documents in
4 || connection with this action. Third parties may designate information as Confidential
5 || or Highly Confidential — Attorneys’ Eyes Only.
6 25. third party produces (or intends to produce) documents and does not
7 || designate (or does not intend to designate) those documents as Confidential Material,
8 || then any party to this action may seek to designate that third party’s documents or
9 || categories of documents as Confidential Material. In that case, it will be the burden
10 || of the party seeking protected status to move for a court order designating the
11 |) materials as Confidential Material after the parties confer.
12 26. In the event additional parties join or intervene in this litigation, the
13 || newly joined party(ies) shall not have access to Confidential Material until its/their
14 || counsel has executed and, at the request of any party, filed with the Court the
15 || agreement of such party(ies) and such counsel to be fully bound by this Order.
16 27. The parties agree that nothing in this Order shall be deemed to limit the
17 || extent to which counsel for the parties may advise or represent their respective clients,
18 || conduct discovery, prepare for trial, present proof at trial, including any document
19 || designated Confidential Material as set forth herein, or oppose the production or
20 || admissibility of any information or documents which have been requested.
21 28. This Order shall remain in full force and effect until such time as it is
22 || modified, amended, or rescinded by the Court.
23 IT IS SO ORDERED.
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55 || Dated: April 19, 2023 huh fe
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BON PERN TE hoe
28 1] Case No. 2:22-cv-0838(
PROTECTIVE ORDER GOVERNING THE DESIGNATION ANT) HANDIING OF

1
EXHIBIT A
2

3 UNITED STATES DISTRICT COURT
4 CENTRAL DISTRICT OF CALIFORNIA
5 JINHUI KIM, individually and on Case No. 2:22-cv-08380-SB-PVC

6 behalf of all others similarly situated,
DISCOVERY MATTER
7 Plaintiff,
8 PROTECTIVE ORDER GOVERNING
v. THE DESIGNATION AND HANDLING
9 OF CONFIDENTIAL MATERIALS
10 WALMART INC.,
District Judge: Stanley Blumenfeld Jr.
11 Defendant. Courtroom: 6C
Complaint Filed: October 6, 2020
12 FAC Filed: December 15. 2022
SAC Filed: March 30, 2023
13 Trial Date: March 25, 2024

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15 NON-DISCLOSURE AGREEMENT
16 I, the undersigned, hereby declare that I have read the Stipulated Order
17 Governing the Designation and Handling of Confidential Materials entered in the
18 above-captioned Action. I understand the terms of, will comply with, and agree to be
19 bound by all of the provisions of the Stipulated Order Governing the Designation and
20 Handling of Confidential Materials. I further agree that I will not use any information
21 received pursuant to the Stipulated Order Governing the Designation and Handling of
22 Confidential Materials to directly compete in any manner with Walmart, Inc. or
23 disclose Confidential Materials to any current or former consultants, advisors, agents
24 of, a direct competitor of Walmart, Inc.
25 DATED: __________________ ______________________________
26 Signature
_______________________________
27 Print Name
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9983020. Public record. Not legal advice.