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Guy v. Toys "R" U.S. - Delaware, Inc.

United States District Court, S.D. California

April 19, 2017

DARRICK M. GUY, individually and on behalf of all similarly situated aggrieved employees, Plaintiff,
TOYS "R" U.S. - DELAWARE, INC., a Delaware corporation; BABIES “R” US, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Defendants


          Hon. Jan M. Adler U.S. Magistrate Judge

         WHEREAS, because this action may require the disclosure of certain confidential, sensitive, and private information, Plaintiff DARRICK M. GUY (Plaintiff) and Defendant TOYS “R” US-US, INC. (TRU) (collectively “the Parties”) have agreed to maintain the confidentiality of all such information, and have jointly moved for a Protective Order, in accordance with the terms set forth herein;

         IT IS HEREBY ORDERED that, if, pursuant to proceedings in this action, any Party or third-party witness: (a) produces information or permits inspection or sampling of any tangible thing, whether informally or in response to oral examination, written discovery requests, or subpoena duces tecum, which any Party or other person claims to constitute confidential information; or (b) receives, by an oral or written communication, information that any Party or other person claims to constitute confidential information, the following procedures shall be employed and the following restrictions shall govern:

         1. Designation of Material

         1.1 Any Party to this action, and any non-party from whom discovery is sought in connection with this action, may designate as “Confidential” or “Confidential - Attorneys' Eyes Only” any documents, things, interrogatory answers, responses to request for admissions, trial or deposition testimony, or other material that contains information, within either of the above designations, as hereinafter defined.

         1.2 As used herein, “Confidential” information shall be information, data, documents, systems, and procedures of, and/or used by, TRU, and all its subsidiaries and/or affiliates, that include sensitive personnel matters, or proprietary information and systems, and/or which were developed or created in connection with TRU's clients, customers, internal guidelines and procedures, or methods, techniques, or processes, or other similar information not generally known by or available to the public. “Confidential” information and documents shall include proprietary and confidential systems and information, which are the property of third-parties licensed to TRU for use in connection with TRU's business. “Confidential - Attorneys' Eyes Only” shall include any information, data, documents, and procedures of TRU, and its subsidiaries and/or affiliates that are, in good faith, determined to contain sensitive, proprietary, confidential and/or personal information for which the producing Party in good faith believes the “Confidential” status would not provide sufficient protection, or such materials that are permitted or required by the Court to be produced as “Confidential - Attorneys' Eyes Only.” “Confidential - Attorneys' Eyes Only” shall be subject to all the protective terms applicable to “Confidential” material as well as the more protective measures expressly set forth herein.

         2. Restriction on Use and Disclosure of Designated and Non-Designated Materials

         2.1 Absent a specific order of this Court, material designated “Confidential” or “Confidential - Attorneys' Eyes Only, ” and any information derived therefrom, shall be used by the Parties solely in connection with this litigation, and not for any business or competitive purpose, and such information shall not be disclosed to anyone except as provided herein.

         2.2 Counsel for each Party shall take reasonable precautions to prevent the unauthorized or inadvertent disclosure of any “Confidential” or “Confidential - Attorneys' Eyes Only” designated material. No copies of materials designated “Confidential” or “Confidential - Attorneys' Eyes Only” shall be made except by or on behalf of counsel for the Parties.

         2.3 The restrictions contained in this Section do not apply to: (a) information that, as evidenced by written records, is or was public knowledge at the time of or prior to designation in this action, or that, after such designation, becomes public knowledge other than by an act or omission of a non-designating Party in violation of this Protective Order; or (b) information that, as evidenced by written records, a non-designating Party has lawfully obtained or may hereafter lawfully obtain from a non-Party to this action having the right to disclose such information free of any obligation of confidentiality.

         2.4 In the event of any dispute with respect to the propriety or correctness of the designation of information, including testimony and documents, as “Confidential” or “Confidential -Attorneys' Eyes Only” materials, the Parties shall attempt to resolve the dispute, pursuant to the undersigned's Chambers Rules regarding Case Management and Discovery Disputes. In the event of failure to resolve the dispute, any Party wishing to challenge the designation the parties may file a motion for an appropriate order a joint motion for determination of discovery dispute. The information shall be treated as designated until the issue is resolved. The burden of proof with respect to the propriety or correctness of the designation shall rest on the designating Party.

         2.5 The Court retains the authority at all times to finally review any document or information designated by a Party as “Confidential” or “Confidential - Attorneys' Eyes Only” and to determine the appropriateness of that designation, and to re-designate any document as non-confidential or “Confidential” if the Court determines that a Party's “Confidential” or “Confidential - Attorneys' Eyes Only” designation is not appropriate.

         3. Marking of Designated Materials

         3.1 A designation as to documents shall be made by placing a legend on each page of any document that a designating Party wishes to protect against unauthorized disclosure or use. The legend shall read: “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY.” All pages of documents to be so designated shall be marked prior to producing a physical copy thereof to the receiving Party. The designation of any thing as to which inspection or sampling has been requested shall be made by placing a legend reading “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” on the thing itself, on a tag attached thereto, or on the container within which it is stored.

         4. Inadvertent Disclosure or Failure to Mark or Designate

         4.1 If a Party inadvertently discloses any document or thing containing “Confidential” or “Confidential - Attorneys' Eyes Only” information without designating it as such, the disclosing Party shall promptly, upon discovery of such inadvertent disclosure, inform the receiving Party in writing, and the receiving Party shall thereafter treat the information as newly designated. The disclosing Party shall provide replacement copies of said inadvertently disclosed materials, with the appropriate designation, to the receiving Party within thirty (30) days of discovery of such inadvertent disclosure. The receiving Party shall make every reasonable effort to retrieve the undesignated materials from all persons who received the undesignated materials and return such materials to the disclosing Party or, if so directed by the disclosing Party, discard all copies of the undesignated materials.

         4.2 If a producing Party inadvertently discloses to a receiving Party information that is privileged or otherwise immune from discovery, the producing Party shall promptly, upon discovery of such disclosure, so advise the receiving Party in writing and request that the materials or information be returned. The receiving Party will return or destroy such inadvertently disclosed materials or information and all copies within ten (10) days of receiving the written request for return of the materials or information. Nothing in this Paragraph shall be construed to preclude any Party from challenging whether the information was inadvertently disclosed and/or whether such disclosure waived any privilege or immunity. Until such time, however, that it is either agreed by the Parties or determined by the Court that a disclosure was not inadvertent and/or that such disclosure waived any privilege or immunity, the information shall be treated as privileged or otherwise immune from discovery and shall not be used or disclosed by the non-disclosing Party. Nothing in this Paragraph modifies this Court's prior Order pursuant to Federal Rule of Evidence 502(d)(1). [Dkt. 16.]

         4.3 Treatment by opposing counsel in conformity with the indicated designation shall not be construed in any way as an admission or agreement by any Party that the designated information is in fact confidential.

         5. Depositions and ...

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