The opinion of the court was delivered by: Honorable Ralph Zarefsky United States Magistrate Judge
[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIAL
Complaint Filed: August 21, 2009
WHEREAS, the parties in a related action concurrently pending before this Court, Zachary Torres, et al. v. Lowe's HIW, Inc., Case No. CV-09-08354-DDP (RZx) ("Torres Action"), agreed to and filed a Stipulated Protective Order with the Court on June 22, 2010 (Dkt. No. 41), and filed a Proposed Order regarding same on June 23, 2010 (Dkt. No. 42);
WHEREAS, the Court denied the Proposed Order filed in the Torres Action on June 28, 2010 on the basis that Federal Rule of Civil Procedure 26(c) requires a good cause showing, based on particular and specific demonstration of fact, for entry of a protective order (Dkt. No. 43);
WHEREAS, the parties in the above-entitled action respectfully seek to file their Stipulation and [Proposed] Order Regarding the Exchange of Confidential Material, which they believe complies with the good cause showing the Court has requested in the June 28, 2010 Order it issued in the Torres Action;
WHEREAS, litigants frequently seek, and courts routinely grant Stipulated Protective Orders in order to facilitate discovery and to enable the parties to protect their confidential, proprietary, and/or trade secret information, see, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003) ("Among the goals furthered by protective orders is reducing conflict over discovery and facilitating the flow of information through discovery.") (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2044.1 (2d ed. 1994)); Tumbling v. Merced Irrigation Dist., 262 F.R.D. 509, 514 (E.D. Cal. 2009) ("Protective orders provide a safeguard for parties and other persons in light of the otherwise broad reach of discovery.") (citing United States v. CBS, Inc., 666 F.2d 364, 368-369 (9th Cir. 1982));
WHEREAS, courts have found good cause to enter into Stipulated Protective Orders where the parties represent that they may disclose third party confidential information, or confidential, trade secret, or proprietary information during the course of discovery, see, e.g., Houdini, Inc. v. Goody Baskets, L.L.C., No. CV-04-9574, 2005 WL 6070180 (C.D. Cal. Nov. 3, 2005);
WHEREAS, pursuant to Rule 29 of the FRCP, the parties have stipulated to the procedures set forth below regarding the use of material disclosed as part of the discovery process in this case; and
WHEREAS, the procedures set forth below are in compliance with the local rules regarding the filing of documents under seal and do not alter the requirement of a particularized showing of specific prejudice or harm for sealing documents filed with the Court, see, e.g., Foltz, 331 F.3d 1122; Young v. Actions Semiconductor Co., Ltd., Civil No. 06cv1667-L(AJB), 2007 WL 2177028, at *3 (S.D. Cal. July 27, 2007) (entering a blanket protective order prior to production of documents, which is "not uncommon," but requiring the parties to make "good cause" showing under Rule 26(c) when attempting to file documents under seal);
WHEREAS, the parties submit and the Court hereby finds that GOOD CAUSE EXISTS in this case for the issuance of this Order Regarding the Exchange of Confidential Material ("Protective Order") for the following reasons:
* Plaintiff Micheal Meyer ("Plaintiff"), a former employee of Defendant Lowe's HIW, Inc. ("Defendant"), brought this lawsuit on behalf of himself and a class consisting of current and former salaried employees of Defendant in the state of California who held the position of Loss Prevention Manager ("LPM"), alleging that Defendant misclassified LPMs as exempt employees;
* On behalf of all putative class members, Plaintiff seeks to recover unpaid overtime compensation, statutory and civil penalties, interest for the applicable limitations period, and his attorneys' fees and costs;
* Plaintiff propounded his first set of document requests and interrogatories on Lowe's on April 19, 2010, seeking, among other things:
(i) documents containing private personal, employment, and financial information of individual persons, for both parties and non-parties, including but not limited to -- personnel and payroll documents setting out these individuals' employment history with Defendant, payroll information, job performance, and personal contact information; and
(ii) nonpublic, confidential, proprietary, commercially sensitive and/or trade secret information pertaining to Defendant's LPMs and its Loss Prevention Department, including but not limited to -- proprietary training materials Defendant has developed for its LPMs, proprietary daily, weekly, and monthly focus objectives (and corresponding "How To" guides) Defendant provides its LPMs, information contained in Defendant's proprietary CyberManager program (which is used by personnel in its Loss Prevention Department), and hiring and performance evaluation criteria for Defendant's LPMs.
* Disclosure of the above-referenced documents and information to persons who are not entitled to such information carries the danger of compromising the competitive business interests of the parties in the above-entitled action, and also risks invasion of legitimate personal and family privacy interests of non-parties;
* Discovery is ongoing, and the parties will likely seek additional disclosure of information claimed by a party or non-party to be confidential, proprietary, commercially sensitive and/or trade secret information;
* The issuance of this Order will allow for efficiency in the discovery process and provide a mechanism by which discovery of relevant confidential information may be obtained in a manner that protects against risk of disclosure of such information to persons not entitled to such information; and
* The issuance of this Order will protect the parties' interests by providing the parties recourse in this Court in the event that a party or non-party improperly handles confidential, proprietary, or sensitive information that the parties have had to exchange in the course of discovery propounded and depositions taken in this action;
WHEREAS, the parties hereto, having stipulated and agreed, by and through their respective counsel, to the entry of this Protective Order in the above-captioned action and the Court having approved the same.
IT IS HEREBY ORDERED THAT:
1. All items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, documents or tangible things) that are produced or generated in disclosures or responses to discovery in this matter are referred to herein as "Disclosure or Discovery Material."
2. Any party to this action (specifically, Plaintiff Micheal Meyer and Defendant Lowe's HIW, Inc.), including any of Defendant's officers, directors, employees, and in-house counsel (and their support staff) is referred to herein as a "Party."
3. A Party or non-party that designates its Disclosures or Discovery Material as "Confidential" is referred to herein as the "Designating Party."
4. A Party that receives Disclosure or Discovery Material from a Designating Party is referred to herein as the "Receiving Party."
5. "Confidential" Information or Items as referred to herein shall mean:
(i) Information that is a "trade secret" as that term is defined in 18 U.S.C. § 1839;
(ii) Confidential and proprietary business and/or financial information;
(iii) Non-public information about any individual or individuals, including personnel records, evaluations, compensation levels, databases, surveys, statistical analysis, analyses of personnel practices, or other information incorporating ...