# Michell Nguyen v. Costco Wholesale Corporation

> District Court, C.D. California · November 3, 2023

URL: https://www.frixlaw.com/law-library/cases/9984987

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9984987

## Opinion text

1

2

3

4

5

6

7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 SOUTHERN DIVISION

11 MICHELL NGUYEN, ) CASE NO.: 8:23-cv-01578-FWS-JDE
)
12 ) STIPULATED PROTECTIVE
Plaintiff, ) ORDER
13 )
vs. )
14 )
COSTCO WHOLESALE )
15 CORPORATION; and DOES 1 to 20, )
Inclusive, )
16 )
Defendants. )
17 )
18 Pursuant to the Parties’ Stipulation (Dkt. 20), and for good cause shown, the
19 Court finds and orders as follows.
20 1. PURPOSES AND LIMITATIONS
21 Discovery in this action is likely to involve production of confidential,
22 proprietary or private information for which special protection from public disclosure
23 and from use for any purpose other than pursuing this litigation may be warranted.
24 Accordingly, the parties hereby stipulate to and petition the Court to enter the
25 following Stipulated Protective Order. This Order does not confer blanket protections
26 on all disclosures or responses to discovery and that the protection it affords from
27 public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles.
1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve trade secrets, valuable research, development,
3 commercial, financial, technical and/or proprietary information for which special
4 protection from public disclosure and from use for any purpose other than
5 prosecution of this action is warranted. Such confidential and proprietary materials
6 and information consist of, among other things, confidential business or financial
7 information, information regarding confidential business practices, or other
8 confidential research, development, or commercial information (including
9 information implicating privacy rights of third parties), information otherwise
10 generally unavailable to the public, or which may be privileged or otherwise
11 protected from disclosure under state or federal statutes, court rules, case decisions,
12 or common law. Accordingly, to expedite the flow of information, to facilitate the
13 prompt resolution of disputes over confidentiality of discovery materials, to
14 adequately protect information the parties are entitled to keep confidential, to ensure
15 that the parties are permitted reasonable necessary uses of such material in
16 preparation for and in the conduct of trial, to address their handling at the end of the
17 litigation, and serve the ends of justice, a protective order for such information is
18 justified in this matter. It is the intent of the parties that information will not be
19 designated as confidential for tactical reasons and that nothing be so designated
20 without a good faith belief that it has been maintained in a confidential, non-public
21 manner, and there is good cause why it should not be part of the public record of this
22 case.
23 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
24 The parties further acknowledge, as set forth in Section 14.3, below, that this
25 Stipulated Protective Order does not entitle them to file confidential information
26 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
27 the standards that will be applied when a party seeks permission from the court to
file material under seal. There is a strong presumption that the public has a right of
1 access to judicial proceedings and records in civil cases. In connection with non-
2 dispositive motions, good cause must be shown to support a filing under seal. See
3 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),
4 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-
5 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even
6 stipulated protective orders require good cause showing), and a specific showing of
7 good cause or compelling reasons with proper evidentiary support and legal
8 justification, must be made with respect to Protected Material that a party seeks to
9 file under seal. The parties’ mere designation of Disclosure or Discovery Material as
10 CONFIDENTIAL does not— without the submission of competent evidence by
11 declaration, establishing that the material sought to be filed under seal qualifies as
12 confidential, privileged, or otherwise protectable—constitute good cause.
13 Further, if a party requests sealing related to a dispositive motion or trial, then
14 compelling reasons, not only good cause, for the sealing must be shown, and the
15 relief sought shall be narrowly tailored to serve the specific interest to be protected.
16 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each
17 item or type of information, document, or thing sought to be filed or introduced under
18 seal, the party seeking protection must articulate compelling reasons, supported by
19 specific facts and legal justification, for the requested sealing order. Again,
20 competent evidence supporting the application to file documents under seal must be
21 provided by declaration.
22 Any document that is not confidential, privileged, or otherwise protectable in
23 its entirety will not be filed under seal if the confidential portions can be redacted. If
24 documents can be redacted, then a redacted version for public viewing, omitting only
25 the confidential, privileged, or otherwise protectable portions of the document, shall
26 be filed. Any application that seeks to file documents under seal in their entirety
27 should include an explanation of why redaction is not feasible.
1 4. DEFINITIONS
2 4.1 Action: this pending federal lawsuit (Case No.: 8:23-cv-01578-FWS-
3 JDE).
4 4.2 Challenging Party: a Party or Non-Party that challenges the designation
5 of information or items under this Order.
6 4.3 “CONFIDENTIAL” Information or Items: information (regardless of
7 how it is generated, stored or maintained) or tangible things that qualify for protection
8 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
9 Cause Statement.
10 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as
11 their support staff).
12 4.5 Designating Party: a Party or Non-Party that designates information or
13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
15 4.6 Disclosure or Discovery Material: all items or information, regardless
16 of the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced or
18 generated in disclosures or responses to discovery.
19 4.7 Expert: a person with specialized knowledge or experience in a matter
20 pertinent to the litigation who has been retained by a Party or its counsel to serve as
21 an expert witness or as a consultant in this Action.
22 4.8 House Counsel: attorneys who are employees of a party to this Action.
23 House Counsel does not include Outside Counsel of Record or any other outside
24 counsel.
25 4.9 Non-Party: any natural person, partnership, corporation, association or
26 other legal entity not named as a Party to this action.
27 4.10 Outside Counsel of Record: attorneys who are not employees of a party
to this Action but are retained to represent a party to this Action and have appeared
1 in this Action on behalf of that party or are affiliated with a law firm that has appeared
2 on behalf of that party, and includes support staff.
3 4.11 Party: any party to this Action, including all of its officers, directors,
4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
6 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
7 Discovery Material in this Action.
8 4.13 Professional Vendors: persons or entities that provide litigation support
9 services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
12 4.14 Protected Material: any Disclosure or Discovery Material that is
13 designated as “CONFIDENTIAL.”
14 4.15 Receiving Party: a Party that receives Disclosure or Discovery
15 Material from a Producing Party.
16 5. SCOPE
17 The protections conferred by this Stipulation and Order cover not only
18 Protected Material (as defined above), but also (1) any information copied or
19 extracted from Protected Material; (2) all copies, excerpts, summaries, or
20 compilations of Protected Material; and (3) any testimony, conversations, or
21 presentations by Parties or their Counsel that might reveal Protected Material.
22 Any use of Protected Material at trial shall be governed by the orders of the
23 trial judge and other applicable authorities. This Order does not govern the use of
24 Protected Material at trial.
25 6. DURATION
26 Once a case proceeds to trial, information that was designated as
27 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
1 members of the public, including the press, unless compelling reasons supported by
2 specific factual findings to proceed otherwise are made to the trial judge in advance
3 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
4 showing for sealing documents produced in discovery from “compelling reasons”
5 standard when merits-related documents are part of court record). Accordingly, the
6 terms of this protective order do not extend beyond the commencement of the trial.
7 7. DESIGNATING PROTECTED MATERIAL
8 7.1 Exercise of Restraint and Care in Designating Material for
9 Protection. Each Party or Non-Party that designates information or
10 items for protection under this Order must take care to limit any such designation to
11 specific material that qualifies under the appropriate standards. The Designating
12 Party must designate for protection only those parts of material, documents, items or
13 oral or written communications that qualify so that other portions of the material,
14 documents, items or communications for which protection is not warranted are not
15 swept unjustifiably within the ambit of this Order.
16 Mass, indiscriminate or routinized designations are prohibited. Designations
17 that are shown to be clearly unjustified or that have been made for an improper
18 purpose (e.g., to unnecessarily encumber the case development process or to impose
19 unnecessary expenses and burdens on other parties) may expose the Designating
20 Party to sanctions.
21 If it comes to a Designating Party’s attention that information or items that it
22 designated for protection do not qualify for protection, that Designating Party must
23 promptly notify all other Parties that it is withdrawing the inapplicable designation.
24 7.2 Manner and Timing of Designations. Except as otherwise provided in
25 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
26 that qualifies for protection under this Order must be clearly so designated before the
27 material is disclosed or produced.
/ / /
1 Designation in conformity with this Order requires:
2 (a) for information in documentary form (e.g., paper or electronic
3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
6 contains protected material. If only a portion of the material on a page qualifies for
7 protection, the Producing Party also must clearly identify the protected portion(s)
8 (e.g., by making appropriate markings in the margins).
9 A Party or Non-Party that makes original documents available for inspection
10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
14 it wants copied and produced, the Producing Party must determine which documents,
15 or portions thereof, qualify for protection under this Order. Then, before producing
16 the specified documents, the Producing Party must affix the “CONFIDENTIAL
17 legend” to each page that contains Protected Material. If only a portion of the material
18 on a page qualifies for protection, the Producing Party also must clearly identify the
19 protected portion(s) (e.g., by making appropriate markings in the margins).
20 (b) for testimony given in depositions that the Designating Party
21 identifies the Disclosure or Discovery Material on the record, before the close of the
22 deposition all protected testimony.
23 (c) for information produced in some form other than documentary and
24 for any other tangible items, that the Producing Party affix in a prominent place on
25 the exterior of the container or containers in which the information is stored the
26 legend “CONFIDENTIAL.” If only a portion or portions of the information warrants
27 protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s).
1 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
2 failure to designate qualified information or items does not, standing alone, waive
3 the Designating Party’s right to secure protection under this Order for such material.
4 Upon timely correction of a designation, the Receiving Party must make reasonable
5 efforts to assure that the material is treated in accordance with the provisions of this
6 Order.
7 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
8 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
9 designation of confidentiality at any time that is consistent with the Court’s
10 Scheduling Order.
11
8.2 Meet and Confer. The Challenging Party shall initiate the dispute
12
resolution process under Local Rule 37-1 et seq.
13
8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
14
joint stipulation pursuant to Local Rule 37-2.
15
8.4 The burden of persuasion in any such challenge proceeding shall be on
16
the Designating Party. Frivolous challenges, and those made for an improper purpose
17
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
18
expose the Challenging Party to sanctions. Unless the Designating Party has waived
19
or withdrawn the confidentiality designation, all parties shall continue to afford the
20
material in question the level of protection to which it is entitled under the Producing
21
Party’s designation until the Court rules on the challenge.
22
9. ACCESS TO AND USE OF PROTECTED MATERIAL
23
9.1 Basic Principles. A Receiving Party may use Protected Material that is
24
disclosed or produced by another Party or by a Non-Party in connection with this
25
Action only for prosecuting, defending or attempting to settle this Action. Such
26
Protected Material may be disclosed only to the categories of persons and under the
27
conditions described in this Order. When the Action has been terminated, a Receiving
1 Protected Material must be stored and maintained by a Receiving Party at a
2 location and in a secure manner that ensures that access is limited to the persons
3 authorized under this Order.
4 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
5 otherwise ordered by the court or permitted in writing by the Designating Party, a
6 Receiving Party may disclose any information or item designated
7 “CONFIDENTIAL” only to:
8 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
9 well as employees of said Outside Counsel of Record to whom it is reasonably
10 necessary to disclose the information for this Action;
11 (b) the officers, directors, and employees (including House Counsel) of
12 the Receiving Party to whom disclosure is reasonably necessary for this Action;
13 (c) Experts (as defined in this Order) of the Receiving Party to whom
14 disclosure is reasonably necessary for this Action and who have signed an
15 “Acknowledgment and Agreement to Be Bound” (separately negotiated);
16 (d) the court and its personnel;
17 (e) court reporters and their staff;
18 (f) professional jury or trial consultants, mock jurors, and Professional
19 Vendors to whom disclosure is reasonably necessary for this Action and who have
20 signed an “Acknowledgment and Agreement to Be Bound” (separately negotiated);
21 (g) the author or recipient of a document containing the information or
22 a custodian or other person who otherwise possessed or knew the information;
23 (h) during their depositions, witnesses, and attorneys for witnesses, in
24 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
25 party requests that the witness sign an “Acknowledgment and Agreement to Be
26 Bound” (separately negotiated); and (2) they will not be permitted to keep any
27 confidential information unless they sign that Agreement, unless otherwise agreed by
the Designating Party or ordered by the court. Pages of transcribed deposition
1 testimony or exhibits to depositions that reveal Protected Material may be separately
2 bound by the court reporter and may not be disclosed to anyone except as permitted
3 under this Stipulated Protective Order; and
4 (i) any mediators or settlement officers and their supporting personnel,
5 mutually agreed upon by any of the parties engaged in settlement discussions.
6 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
7 PRODUCED IN OTHER LITIGATION
8 If a Party is served with a subpoena or a court order issued in other litigation
9 that compels disclosure of any information or items designated in this Action as
10 “CONFIDENTIAL,” that Party must:
11 (a) promptly notify in writing the Designating Party. Such notification
12 shall include a copy of the subpoena or court order;
13 (b) promptly notify in writing the party who caused the subpoena or
14 order to issue in the other litigation that some or all of the material covered by the
15 subpoena or order is subject to this Protective Order. Such notification shall include
16 a copy of this Stipulated Protective Order; and
17 (c) cooperate with respect to all reasonable procedures sought to be
18 pursued by the Designating Party whose Protected Material may be affected. If the
19 Designating Party timely seeks a protective order, the Party served with the subpoena
20 or court order shall not produce any information designated in this action as
21 “CONFIDENTIAL” before a determination by the court from which the subpoena or
22 order issued, unless the Party has obtained the Designating Party’s permission. The
23 Designating Party shall bear the burden and expense of seeking protection in that
24 court of its confidential material and nothing in these provisions should be construed
25 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
26 directive from another court.
27 / / /
/ / /
1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
2 PRODUCED IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by a
4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the
6 remedies and relief provided by this Order. Nothing in these provisions should be
7 construed as prohibiting a Non-Party from seeking additional protections.
8 (b) In the event that a Party is required, by a valid discovery request, to
9 produce a Non-Party’s confidential information in its possession, and the Party is
10 subject to an agreement with the Non-Party not to produce the Non-Party’s
11 confidential information, then the Party shall:
12 (1) promptly notify in writing the Requesting Party and the Non-
13 Party that some or all of the information requested is subject to a confidentiality
14 agreement with a Non-Party;
15 (2) promptly provide the Non-Party with a copy of the Stipulated
16 Protective Order in this Action, the relevant discovery request(s), and a reasonably
17 specific description of the information requested; and
18 (3) make the information requested available for inspection by the
19 Non-Party, if requested.
20 (c) If the Non-Party fails to seek a protective order from this court within
21 14 days of receiving the notice and accompanying information, the Receiving Party
22 may produce the Non-Party’s confidential information responsive to the discovery
23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
24 not produce any information in its possession or control that is subject to the
25 confidentiality agreement with the Non-Party before a determination by the court.
26 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
27 of seeking protection in this court of its Protected Material.
/ / /
1 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 persons to whom unauthorized disclosures were made of all the terms of this Order,
8 and (d) request such person or persons to execute the “Acknowledgment an
9 Agreement to Be Bound” (separately negotiated).
10 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
11 OTHERWISE PROTECTED MATERIAL
12 When a Producing Party gives notice to Receiving Parties that certain
13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without prior
17 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
18 parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the
20 parties may incorporate their agreement in the stipulated protective order submitted
21 to the court.
22 14. MISCELLANEOUS
23 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
24 person to seek its modification by the Court in the future.
25 14.2 Right to Assert Other Objections. By stipulating to the entry of this
26 Protective Order, no Party waives any right it otherwise would have to object to
27 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
1 ground to use in evidence of any of the material covered by this Protective Order.
2 14.3 Filing Protected Material. A Party that seeks to file under seal any
3 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
4 only be filed under seal pursuant to a court order authorizing the sealing of the
5 specific Protected Material. If a Party’s request to file Protected Material under seal
6 is denied by the court, then the Receiving Party may file the information in the public
7 record unless otherwise instructed by the court.
8 15. FINAL DISPOSITION
9 After the final disposition of this Action, as defined in paragraph 6, within 60
10 days of a written request by the Designating Party, each Receiving Party must return
11 all Protected Material to the Producing Party or destroy such material. As used in this
12 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
13 summaries, and any other format reproducing or capturing any of the Protected
14 Material. Whether the Protected Material is returned or destroyed, the Receiving
15 Party must submit a written certification to the Producing Party (and, if not the same
16 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies
17 (by category, where appropriate) all the Protected Material that was returned or
18 destroyed and (2) affirms that the Receiving Party has not retained any copies,
19 abstracts, compilations, summaries or any other format reproducing or capturing any
20 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
21 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
22 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
23 reports, attorney work product, and consultant and expert work product, even if such
24 materials contain Protected Material. Any such archival copies that contain or
25 constitute Protected Material remain subject to this Protective Order as set forth in
26 Section 6 (DURATION).
27 / / /
/ / /
1 16. VIOLATION
2 Any violation of this Order may be punished by appropriate measure:
3|| including, without limitation, contempt proceedings and/or monetary sanctions.
5|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
7|| DATED: November 03, 2023
8 if de
9
10 ISHN D. EARLY : □
nited States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9984987. Public record. Not legal advice.