Preview
1 Robert K. Phillips – 135088
Alyce W. Foshee – 300148
2 Darya Landa - 321346
PHILLIPS, SPALLAS & ANGSTADT LLP
3 505 Sansome Street, Sixth Floor
San Francisco, California 94111
4 Telephone: (415) 278-9400
Facsimile: (415) 278-9411
5
Attorneys for Defendant
6 Walmart Inc. RECEIVED
11/2/2020 12:24 PM
7 FRESNO COUNTY SUPERIOR COURT
By: A. Ramos, Deputy
8 SUPERIOR COURT OF CALIFORNIA
9
IN AND FOR THE COUNTY OF FRESNO – UNLIMITED JURISDICTION
10
DEBRA LYSTAD, an individual, Case No. 20CECG00864
11
Plaintiff,
12
13 v.
STIPULATED PROTECTIVE ORDER AND
[PROPOSED] ORDER
14 WALMART INC, a Corporation; MIKE
MANSKER, an individual; and DOES 1
15 through 50, inclusive,
Defendant.
16
17
Related Roe Cross-Complaint.
18
The parties hereto stipulate to the following protective order:
19
1. PURPOSES AND LIMITATIONS
20
Disclosure and discovery activity in this action are likely to involve production of
21
confidential, proprietary, or private information for which special protection from public disclosure
22
and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
23
the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
24
Order. The parties acknowledge that this Order does not confer blanket protections on all
25
disclosures or responses to discovery and that the protection it affords from public disclosure and use
26
extends only to the limited information or items that are entitled to confidential treatment under the
27
applicable legal principles. The parties further acknowledge, as set forth in Section 10, below, that
28
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1 this Stipulated Protective Order creates no entitlement to file confidential information under seal;
2 California Rule of Court 2.550 sets forth the procedures that must be followed and reflects the
3 standards that will be applied when a Party seeks permission from the court to file material under
4 seal.
5 2. DEFINITIONS
6 2.1 Party: any party to this action, including all of its officers, directors, employees,
7 consultants, retained experts, and respective counsel (and their support staff).
8 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium
9 or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or
10 tangible things) that are produced by a party to this action or generated by a Party to this action in
11 disclosures or responses to discovery in this matter.
12 2.3 “Confidential” Information or Items: information (regardless of how generated, stored
13 or maintained) or tangible things that concern Walmart Inc., may include but are not limited to,
14 personnel files of Walmart’s employees, seminar material, instruction manuals, business operation
15 plans, practice, policy and procedure guidelines, and other documentation, records, and reports
16 dealing with or relating to Walmart Inc.’s corporate practices. Likewise, “confidential” information
17 or items may include, but is not limited to, medical or psychological records pertaining to Plaintiff.
18 2.4 OMITTED
19 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a
20 Producing Party.
21 2.6 Producing Party: a Party or non-Party that produces Disclosure or Discovery Material
22 in this action.
23 2.7. Designating Party: a Party or non-Party that designates information or items that it
24 produces in disclosures or in responses to discovery as “Confidential”.
25 2.8 Protected Material: any Disclosure or Discovery Material that is designated as
26 “Confidential” but shall not include those same materials or other materials that are lawfully
27 obtained from a source other than a Party to this action. A Party, however, may apply to the above-
28 titled Court to designate as Protected Material any information or materials lawfully obtained from a
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1 source other than a Party to this action.
2 2.9 Expert: a person with specialized knowledge or experience in a matter pertinent to the
3 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
4 consultant in this action and who is not a past or a current employee of a Party or of a competitor of
5 a Party and who, at the time of retention, is not anticipated to become an employee of a Party or a
6 competitor of a Party. This definition includes a professional jury or trial consultant retained in
7 connection with this litigation.
8 2.10 Professional Vendors: persons or entities that provide litigation support services (e.g.,
9 photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing,
10 retrieving data in any form or medium; etc.) and their employees and subcontractors.
11 2.11 House Counsel: attorneys who are employees of a Party to this action. House Counsel
12 does not include Outside Counsel of Record or any other outside counsel.
13 2.12 Non-Party: any natural person, partnership, corporation, association, or other legal
14 entity not named as a Party to this action.
15 2.13 Outside Counsel of Record: attorneys who are not employees of a Party to this action
16 but are retained to represent or advise a Party to this action and have appeared in this action on
17 behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party.
18 3. SCOPE
19 The protections conferred by this Stipulation and Order cover not only Protected Material (as
20 defined above), but also any information copied or extracted from Protected Material, as well as all
21 copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations
22 by parties or counsel to or in court or in other settings that might reveal Protected Material. Any use
23 of Protected Material at trial shall be governed by a separate agreement or order.
24 4. DURATION
25 Even after the termination of this litigation, the confidentiality obligations imposed by this
26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
27 otherwise directs. Final disposition shall be deemed to be the latter of (1) dismissal of all claims and
28 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
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1 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
2 time limits for filing any motions or applications for extension of time pursuant to applicable law.
3 5. DESIGNATING PROTECTED MATERIAL
4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or
5 non-Party that designates information or items for protection under this Order must take care to limit
6 any such designation to specific material that qualifies under the appropriate standards. A
7 Designating Party must take care to designate for protection only those parts of material, documents,
8 items, or oral or written communications that qualify – so that other portions of the material,
9 documents, items, or communications for which protection is not warranted are not swept
10 unjustifiably within the ambit of this Order.
11 If it comes to a Party’s or a non-Party’s attention that information or items that it designated
12 for protection do not qualify for protection at all, or do not qualify for the level of protection initially
13 asserted, that Party or non-Party must promptly notify all other parties that it is withdrawing the
14 mistaken designation.
15 5.2. Manner and Timing of Designations. Except as otherwise provided in this Order (see,
16 e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that
17 qualifies for protection under this Order must be clearly so designated before the material is
18 disclosed or produced.
19 Designation in conformity with this Order requires:
20 (a) For information in documentary form (apart from transcripts of depositions or other
21 pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” on the
22 face of the document of each page that contains protected material. If only a portion or portions of
23 the material on a page qualifies for protection, the Producing Party also must clearly identify the
24 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
25 each portion, the level of protection being asserted (i.e. “CONFIDENTIAL”). A Party or non-Party
26 that makes original documents or materials available for inspection need not designate them for
27 protection until after the inspecting Party has indicated which material it would like copied and
28 produced. During the inspection and before the designation, all of the material made available for
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1 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the
2 documents it wants copied and produced, the Producing Party must determine which documents, or
3 portions thereof, qualify for protection under this Order. Then, before producing the specified
4 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that
5 contains Protected Material. If only a portion or portions of the material on a page qualifies for
6 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
7 appropriate markings in the margins).
8 (b) For testimony given in deposition or in other pretrial or trial proceedings, that the
9 Party or non-Party offering or sponsoring the testimony identify on the record, before the close of
10 the deposition, hearing, or other proceeding, all protected testimony, and further specify any portions
11 of the testimony that qualify as “CONFIDENTIAL”.
12 When it is impractical to identify separately each portion of testimony that is entitled to
13 protection, and when it appears that substantial portions of the testimony may qualify for protection,
14 the Party or non-Party that sponsors, offers, or gives the testimony may invoke on the record (before
15 the deposition or proceeding is concluded) a right to have up to 10 (ten) days to identify the specific
16 portions of the testimony as to which protection is sought and to specify the level of protection being
17 asserted (i.e. “CONFIDENTIAL”). Only those portions of the testimony that are appropriately
18 designated for protection within the 10 (ten) days shall be covered by the provisions of this
19 Stipulated Protective Order.
20 Transcript pages containing Protected Material must be separately bound by the court
21 reporter, who must affix to the bottom of each such page the legend “CONFIDENTIAL” as
22 instructed by the Party or non-Party offering or sponsoring the witness or presenting the testimony.
23 The Designating Party of any such material shall bear any additional court reporter fees or costs that
24 are caused by the designation.
25 (c) For information produced in some form other than documentary, and for any other
26 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
27 containers in which the information or item is stored the legend “CONFIDENTIAL”. If only
28 portions of the information or item warrant protection, the Producing Party, to the extent practicable,
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1 shall identify the protected portions, specifying “Confidential”.
2 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
3 designate qualified information or items as “Confidential” does not, standing alone, waive the
4 Designating Party’s right to secure protection under this Order for such material. If material is
5 appropriately designated as “Confidential” after the material was initially produced, the Receiving
6 Party, on timely notification of the designation, must make reasonable efforts to assure that the
7 material is treated in accordance with the provisions of this Order.
8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
9 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s
10 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary
11 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive
12 its right to challenge a confidentiality designation by electing not to mount a challenge promptly
13 after the original designation is disclosed.
14 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s
15 confidentiality designation must do so in good faith and must begin the process by conferring
16 directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel
17 for the Designating Party. In conferring, the challenging Party must explain the basis for its belief
18 that the confidentiality designation was not proper and must give the Designating Party an
19 opportunity to review the designated material, to reconsider the circumstances, and, if no change in
20 designation is offered, to explain the basis for the chosen designation. A challenging Party may
21 proceed to the next stage of the challenge process only if it has engaged in this meet and confer
22 process first.
23 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality
24 designation after considering the justification offered by the Designating Party may file and serve a
25 motion that identifies the challenged material and sets forth in detail the basis for the challenge.
26 Each such motion must be accompanied by a competent declaration that affirms that the moving
27 party has complied with the meet and confer requirements imposed in the preceding paragraph and
28 that sets forth with specificity the justification for the confidentiality designation that was given by
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[PROPOSED] STIPULATED PROTECTIVE ORDER
1 the Designating Party in the meet and confer dialogue.
2 The burden of persuasion in any such challenge proceeding shall be on the Designating
3 Party. Until the court rules on the challenge, all parties shall continue to afford the material in
4 question the level of protection to which it is entitled under the Producing Party’s designation.
5 7. ACCESS TO AND USE OF PROTECTED MATERIAL
6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
7 produced by another Party or by a non-Party in connection with this case only for prosecuting,
8 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
9 the categories of persons and under the conditions described in this Order. When the litigation has
10 been terminated, a Receiving Party must comply with the provisions of Section 11, below (FINAL
11 DISPOSITION).
12 Protected Material must be stored and maintained by a Receiving Party at a location and in a
13 secure manner that ensures that access is limited to the persons authorized under this Order.
14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
15 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
16 information or item designated CONFIDENTIAL only to:
17 (a) the Receiving Party’s Outside Counsel of record in this action, as well as employees
18 of said Counsel to whom it is reasonably necessary to disclose the information for this litigation;
19 (b) the employees of the Receiving Party to whom disclosure is reasonably necessary for
20 this litigation;
21 (c) experts (as defined in this Order) of the Receiving Party to whom disclosure is
22 reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by
23 Protective Order” (Exhibit A);
24 (d) the court and its personnel;
25 (e) court reporters, their staffs, and professional vendors to whom disclosure is
26 reasonably necessary for this litigation;
27 (f) during their depositions, witnesses in the action to whom disclosure is reasonably
28 necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
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1 Material must be separately bound by the court reporter and may not be disclosed to anyone except
2 as permitted under this Stipulated Protective Order. The party designating any material in the
3 deposition “CONFIDENTIAL” shall bear any additional court reporter fees or costs that are caused
4 by the designation.
5 (g) Mediators jointly retained by all parties to assist in case resolution;
6 (h) the author of the document or the original source of the information.
7 7.3 OMMITTED
8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
9 LITIGATION
10 If a Receiving Party is served with a subpoena or an order issued in other litigation that
11 would compel disclosure of any information or items designated in this action as
12 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by
13 facsimile, if possible) immediately and in no event more than three court days after receiving the
14 subpoena or order. Such notification must include a copy of the subpoena or court order.
15 The Receiving Party also must immediately inform in writing the Party who caused the
16 subpoena or order to issue in the other litigation that some or all the material covered by the
17 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must
18 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that
19 caused the subpoena or order to issue.
20 If the Designating Party timely seeks a protective order, the Party served with the subpoena
21 or court order shall not produce any information designated in this action as “CONFIDENTIAL”
22 before a determination by the court from which the subpoena or order issued, unless the Party has
23 obtained the Designating Party’s permission. The purpose of imposing these duties is to alert the
24 interested parties to the existence of this Protective Order and to afford the Designating Party in this
25 case an opportunity to try to protect its confidentiality interests in the appropriate court. The
26 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its
27 confidential material – and nothing in these provisions should be construed as authorizing or
28 encouraging a Receiving Party in this action to disobey a lawful directive from another court.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
1 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
3 Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
4 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
5 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the
6 person or persons to whom unauthorized disclosures were made of all the terms of this Order, and
7 (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
8 that is attached hereto as Exhibit A.
9 10. FILING PROTECTED MATERIAL
10 Without written permission from the Designating Party, Protected Material shall be filed
11 pursuant to California Rules of Court Rules 243.1-243.4.
12 11. FINAL DISPOSITION
13 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days after
14 the final termination of this action, each Receiving Party must return all Protected Material to the
15 Producing Party. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
16 compilations, summaries or any other form of reproducing or capturing any of the Protected
17 Material. With permission in writing from the Designating Party, the Receiving Party may destroy
18 some or all of the Protected Material instead of returning it. Whether the Protected Material is
19 returned or destroyed, the Receiving Party must submit a written certification to the Producing Party
20 (and, if not the same person or entity, to the Designating Party) by the sixty day deadline that
21 identifies (by category, where appropriate) all the Protected Material that was returned or destroyed
22 and that affirms that the Receiving Party has not retained any copies, abstracts, compilations,
23 summaries or other forms of reproducing or capturing any of the Protected Material.
24 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,
25 motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such
26 materials contain Protected Material. Any such archival copies that contain or constitute Protected
27 Material remain subject to this Protective Order as set forth in Section 4, above.
28 ...
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1 12. MISCELLANEOUS
2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to
3 seek its modification by the court in the future.
4 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order
5 no Party waives any right it otherwise would have to object to disclosing or producing any
6 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
7 Party waives any right to object on any ground to use in evidence of any of the material covered by
8 this Protective Order.
9 12.3 Filing Protected Material. Without written permission from the Designating Party or a
10 court order secured after appropriate notice to all interested persons, a Party may not file in the
11 public record in this action any Protected Material. Protected Material may only be filed under seal
12 pursuant to a court order authorizing the sealing of the specific Protected Material at issue.
13 12.4 Nothing in this Order shall be construed as an admission as to the relevance,
14 authenticity, foundation or admissibility of any document, material, transcript or other
15 information.
16 IT IS SO STIPULATED BY AND BETWEEN THE PARTIES THROUGH THEIR
17 COUNSEL OF RECORD:
18 October 20
Dated: _________________, 2020 By: _______________________________
19 Mia Hong
KARNS & KARNS, LLP
20 Attorneys for Plaintiff DEBRA LYSTAD
21
Dated: October 29
_________________, 2020 By: _______________________________
22 Robert K. Phillips
Alyce W. Foshee
23 Darya Landa
PHILLIPS, SPALLAS & ANGSTADT LLP
24 Attorneys for Defendant Walmart Inc.
25 PURSUANT TO STIPULATION, IT IS SO ORDERED.
26
27 Dated: __________________, 2020 _______________________________
28 JUDGE OF THE SUPERIOR COURT
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Case No. 20CECG00864
[PROPOSED] STIPULATED PROTECTIVE ORDER
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________, of _________________________, declare under penalty
5 of perjury that I have read in its entirety and understand the Stipulated Protective Order agreed upon by
6 the parties in the action styled Debra Lystad v. Walmart Inc., et al. County of Fresno, Superior Court
7 Case No. 20CECG00864.
8 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order unless
9 and until modified by any court Order. I understand and acknowledge that failure to so comply could
10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not
11 disclose in any manner any information or item that is subject to this Stipulated Protective Order to any
12 person or entity except in strict compliance with the provisions of this Order.
13 I further agree to submit to the jurisdiction of the courts in and for the state of California for the
14 purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings
15 occur after termination of this action.
16
17 Date: ________________
18
19 City and State where sworn and signed: _________________________________
20
21 Print Name: ______________________________
22
23 Signature: ________________________________
24
25
26
27
28
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Case No. 20CECG00864
[PROPOSED] STIPULATED PROTECTIVE ORDER
1 PROOF OF SERVICE
Debra Lystad v. Walmart Inc, a Corporation; Mike Mansker,
2 an individual; and DOES 1 through 50, inclusive,
California Superior Court, County of Fresno, Case No.: 20CECG00864
3
I am employed in the County of San Francisco, State of California. I am over the age of 18 and am
4
not a party to the within action; that my business address is PHILLIPS SPALLAS & ANGSTADT LLP,
5 505 Sansome Street, Sixth Floor, San Francisco, CA 94111.
6 On November 3, 2020, I served the foregoing document(s) described as:
1. STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER
7
8 on all other parties and/ or their attorney(s) of record to this action as follows:
9 Michael Karns, Esq.
William Karns, Esq.
10 Mia Hong, Esq.
Karns & Karns, LLP
11 10801 National Blvd, Suite 335
Los Angeles, CA 90064
12 bkarns@karnsandkarns.com
Mia@karnsandkarns.com
13 kim@karnsandkarns.com
14 [ ] BY MAIL SERVICE: by placing such envelopes for collection and to be mailed on this date
following ordinary business practices.
15
[ X] BY E-MAIL: based on a court order or an agreement of the parties to accept service by e-mail or
16 electronic transmission, I caused the document to be sent to the persons at the e-mail addresses listed
below. I did not receive, within a reasonable time after the transmission, an electronic message or
17 other indication that the transmission was unsuccessful.
[ ] By First Legal EFiling Electronic Service: Complying with Code of Civil
18 Procedure section 1010.6, I caused such documents (s) to be electronically served through the First
Legal EFiling system for the above-entitled case to the parties on the Service List maintained on First
19 Legal EFiling website for this case. Upon completion of said transmission of said document(s), a
certified receipt is issued to filing party acknowledging receipt by First Legal EFiling's system. The
20 file transmission was reported as complete and copy of the First Legal EFiling Receipt will be
maintained with original documents in our office.
21
22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct. Executed on November 3, 2020, at Novato, California.
23
24 _____________________________
Erik Cervantes
25
26
27
28
Preview
1 Robert K. Phillips – 135088 Alyce W. Foshee – 300148 2 Darya Landa - 321346 PHILLIPS, SPALLAS & ANGSTADT LLP 3 505 Sansome Street, Sixth Floor San Francisco, California 94111 4 Telephone: (415) 278-9400 Facsimile: (415) 278-9411 5 Attorneys for Defendant 6 Walmart Inc. RECEIVED 11/2/2020 12:24 PM 7 FRESNO COUNTY SUPERIOR COURT By: A. Ramos, Deputy 8 SUPERIOR COURT OF CALIFORNIA 9 IN AND FOR THE COUNTY OF FRESNO – UNLIMITED JURISDICTION 10 DEBRA LYSTAD, an individual, Case No. 20CECG00864 11 Plaintiff, 12 13 v. STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER 14 WALMART INC, a Corporation; MIKE MANSKER, an individual; and DOES 1 15 through 50, inclusive, Defendant. 16 17 Related Roe Cross-Complaint. 18 The parties hereto stipulate to the following protective order: 19 1. PURPOSES AND LIMITATIONS 20 Disclosure and discovery activity in this action are likely to involve production of 21 confidential, proprietary, or private information for which special protection from public disclosure 22 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 23 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 24 Order. The parties acknowledge that this Order does not confer blanket protections on all 25 disclosures or responses to discovery and that the protection it affords from public disclosure and use 26 extends only to the limited information or items that are entitled to confidential treatment under the 27 applicable legal principles. The parties further acknowledge, as set forth in Section 10, below, that 28 -1- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 this Stipulated Protective Order creates no entitlement to file confidential information under seal; 2 California Rule of Court 2.550 sets forth the procedures that must be followed and reflects the 3 standards that will be applied when a Party seeks permission from the court to file material under 4 seal. 5 2. DEFINITIONS 6 2.1 Party: any party to this action, including all of its officers, directors, employees, 7 consultants, retained experts, and respective counsel (and their support staff). 8 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium 9 or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or 10 tangible things) that are produced by a party to this action or generated by a Party to this action in 11 disclosures or responses to discovery in this matter. 12 2.3 “Confidential” Information or Items: information (regardless of how generated, stored 13 or maintained) or tangible things that concern Walmart Inc., may include but are not limited to, 14 personnel files of Walmart’s employees, seminar material, instruction manuals, business operation 15 plans, practice, policy and procedure guidelines, and other documentation, records, and reports 16 dealing with or relating to Walmart Inc.’s corporate practices. Likewise, “confidential” information 17 or items may include, but is not limited to, medical or psychological records pertaining to Plaintiff. 18 2.4 OMITTED 19 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a 20 Producing Party. 21 2.6 Producing Party: a Party or non-Party that produces Disclosure or Discovery Material 22 in this action. 23 2.7. Designating Party: a Party or non-Party that designates information or items that it 24 produces in disclosures or in responses to discovery as “Confidential”. 25 2.8 Protected Material: any Disclosure or Discovery Material that is designated as 26 “Confidential” but shall not include those same materials or other materials that are lawfully 27 obtained from a source other than a Party to this action. A Party, however, may apply to the above- 28 titled Court to designate as Protected Material any information or materials lawfully obtained from a -2- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 source other than a Party to this action. 2 2.9 Expert: a person with specialized knowledge or experience in a matter pertinent to the 3 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 4 consultant in this action and who is not a past or a current employee of a Party or of a competitor of 5 a Party and who, at the time of retention, is not anticipated to become an employee of a Party or a 6 competitor of a Party. This definition includes a professional jury or trial consultant retained in 7 connection with this litigation. 8 2.10 Professional Vendors: persons or entities that provide litigation support services (e.g., 9 photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, 10 retrieving data in any form or medium; etc.) and their employees and subcontractors. 11 2.11 House Counsel: attorneys who are employees of a Party to this action. House Counsel 12 does not include Outside Counsel of Record or any other outside counsel. 13 2.12 Non-Party: any natural person, partnership, corporation, association, or other legal 14 entity not named as a Party to this action. 15 2.13 Outside Counsel of Record: attorneys who are not employees of a Party to this action 16 but are retained to represent or advise a Party to this action and have appeared in this action on 17 behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party. 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only Protected Material (as 20 defined above), but also any information copied or extracted from Protected Material, as well as all 21 copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations 22 by parties or counsel to or in court or in other settings that might reveal Protected Material. Any use 23 of Protected Material at trial shall be governed by a separate agreement or order. 24 4. DURATION 25 Even after the termination of this litigation, the confidentiality obligations imposed by this 26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 27 otherwise directs. Final disposition shall be deemed to be the latter of (1) dismissal of all claims and 28 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion -3- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 2 time limits for filing any motions or applications for extension of time pursuant to applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 5 non-Party that designates information or items for protection under this Order must take care to limit 6 any such designation to specific material that qualifies under the appropriate standards. A 7 Designating Party must take care to designate for protection only those parts of material, documents, 8 items, or oral or written communications that qualify – so that other portions of the material, 9 documents, items, or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this Order. 11 If it comes to a Party’s or a non-Party’s attention that information or items that it designated 12 for protection do not qualify for protection at all, or do not qualify for the level of protection initially 13 asserted, that Party or non-Party must promptly notify all other parties that it is withdrawing the 14 mistaken designation. 15 5.2. Manner and Timing of Designations. Except as otherwise provided in this Order (see, 16 e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that 17 qualifies for protection under this Order must be clearly so designated before the material is 18 disclosed or produced. 19 Designation in conformity with this Order requires: 20 (a) For information in documentary form (apart from transcripts of depositions or other 21 pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” on the 22 face of the document of each page that contains protected material. If only a portion or portions of 23 the material on a page qualifies for protection, the Producing Party also must clearly identify the 24 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 25 each portion, the level of protection being asserted (i.e. “CONFIDENTIAL”). A Party or non-Party 26 that makes original documents or materials available for inspection need not designate them for 27 protection until after the inspecting Party has indicated which material it would like copied and 28 produced. During the inspection and before the designation, all of the material made available for -4- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the 2 documents it wants copied and produced, the Producing Party must determine which documents, or 3 portions thereof, qualify for protection under this Order. Then, before producing the specified 4 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that 5 contains Protected Material. If only a portion or portions of the material on a page qualifies for 6 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 7 appropriate markings in the margins). 8 (b) For testimony given in deposition or in other pretrial or trial proceedings, that the 9 Party or non-Party offering or sponsoring the testimony identify on the record, before the close of 10 the deposition, hearing, or other proceeding, all protected testimony, and further specify any portions 11 of the testimony that qualify as “CONFIDENTIAL”. 12 When it is impractical to identify separately each portion of testimony that is entitled to 13 protection, and when it appears that substantial portions of the testimony may qualify for protection, 14 the Party or non-Party that sponsors, offers, or gives the testimony may invoke on the record (before 15 the deposition or proceeding is concluded) a right to have up to 10 (ten) days to identify the specific 16 portions of the testimony as to which protection is sought and to specify the level of protection being 17 asserted (i.e. “CONFIDENTIAL”). Only those portions of the testimony that are appropriately 18 designated for protection within the 10 (ten) days shall be covered by the provisions of this 19 Stipulated Protective Order. 20 Transcript pages containing Protected Material must be separately bound by the court 21 reporter, who must affix to the bottom of each such page the legend “CONFIDENTIAL” as 22 instructed by the Party or non-Party offering or sponsoring the witness or presenting the testimony. 23 The Designating Party of any such material shall bear any additional court reporter fees or costs that 24 are caused by the designation. 25 (c) For information produced in some form other than documentary, and for any other 26 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 27 containers in which the information or item is stored the legend “CONFIDENTIAL”. If only 28 portions of the information or item warrant protection, the Producing Party, to the extent practicable, -5- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 shall identify the protected portions, specifying “Confidential”. 2 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 3 designate qualified information or items as “Confidential” does not, standing alone, waive the 4 Designating Party’s right to secure protection under this Order for such material. If material is 5 appropriately designated as “Confidential” after the material was initially produced, the Receiving 6 Party, on timely notification of the designation, must make reasonable efforts to assure that the 7 material is treated in accordance with the provisions of this Order. 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 9 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 10 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 11 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive 12 its right to challenge a confidentiality designation by electing not to mount a challenge promptly 13 after the original designation is disclosed. 14 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s 15 confidentiality designation must do so in good faith and must begin the process by conferring 16 directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel 17 for the Designating Party. In conferring, the challenging Party must explain the basis for its belief 18 that the confidentiality designation was not proper and must give the Designating Party an 19 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 20 designation is offered, to explain the basis for the chosen designation. A challenging Party may 21 proceed to the next stage of the challenge process only if it has engaged in this meet and confer 22 process first. 23 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality 24 designation after considering the justification offered by the Designating Party may file and serve a 25 motion that identifies the challenged material and sets forth in detail the basis for the challenge. 26 Each such motion must be accompanied by a competent declaration that affirms that the moving 27 party has complied with the meet and confer requirements imposed in the preceding paragraph and 28 that sets forth with specificity the justification for the confidentiality designation that was given by -6- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 the Designating Party in the meet and confer dialogue. 2 The burden of persuasion in any such challenge proceeding shall be on the Designating 3 Party. Until the court rules on the challenge, all parties shall continue to afford the material in 4 question the level of protection to which it is entitled under the Producing Party’s designation. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 7 produced by another Party or by a non-Party in connection with this case only for prosecuting, 8 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 9 the categories of persons and under the conditions described in this Order. When the litigation has 10 been terminated, a Receiving Party must comply with the provisions of Section 11, below (FINAL 11 DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a location and in a 13 secure manner that ensures that access is limited to the persons authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 15 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 16 information or item designated CONFIDENTIAL only to: 17 (a) the Receiving Party’s Outside Counsel of record in this action, as well as employees 18 of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; 19 (b) the employees of the Receiving Party to whom disclosure is reasonably necessary for 20 this litigation; 21 (c) experts (as defined in this Order) of the Receiving Party to whom disclosure is 22 reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by 23 Protective Order” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters, their staffs, and professional vendors to whom disclosure is 26 reasonably necessary for this litigation; 27 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 28 necessary. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected -7- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 Material must be separately bound by the court reporter and may not be disclosed to anyone except 2 as permitted under this Stipulated Protective Order. The party designating any material in the 3 deposition “CONFIDENTIAL” shall bear any additional court reporter fees or costs that are caused 4 by the designation. 5 (g) Mediators jointly retained by all parties to assist in case resolution; 6 (h) the author of the document or the original source of the information. 7 7.3 OMMITTED 8 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 9 LITIGATION 10 If a Receiving Party is served with a subpoena or an order issued in other litigation that 11 would compel disclosure of any information or items designated in this action as 12 “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by 13 facsimile, if possible) immediately and in no event more than three court days after receiving the 14 subpoena or order. Such notification must include a copy of the subpoena or court order. 15 The Receiving Party also must immediately inform in writing the Party who caused the 16 subpoena or order to issue in the other litigation that some or all the material covered by the 17 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 18 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that 19 caused the subpoena or order to issue. 20 If the Designating Party timely seeks a protective order, the Party served with the subpoena 21 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 22 before a determination by the court from which the subpoena or order issued, unless the Party has 23 obtained the Designating Party’s permission. The purpose of imposing these duties is to alert the 24 interested parties to the existence of this Protective Order and to afford the Designating Party in this 25 case an opportunity to try to protect its confidentiality interests in the appropriate court. The 26 Designating Party shall bear the burdens and the expenses of seeking protection in that court of its 27 confidential material – and nothing in these provisions should be construed as authorizing or 28 encouraging a Receiving Party in this action to disobey a lawful directive from another court. -8- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 4 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 5 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 6 person or persons to whom unauthorized disclosures were made of all the terms of this Order, and 7 (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 8 that is attached hereto as Exhibit A. 9 10. FILING PROTECTED MATERIAL 10 Without written permission from the Designating Party, Protected Material shall be filed 11 pursuant to California Rules of Court Rules 243.1-243.4. 12 11. FINAL DISPOSITION 13 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days after 14 the final termination of this action, each Receiving Party must return all Protected Material to the 15 Producing Party. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 16 compilations, summaries or any other form of reproducing or capturing any of the Protected 17 Material. With permission in writing from the Designating Party, the Receiving Party may destroy 18 some or all of the Protected Material instead of returning it. Whether the Protected Material is 19 returned or destroyed, the Receiving Party must submit a written certification to the Producing Party 20 (and, if not the same person or entity, to the Designating Party) by the sixty day deadline that 21 identifies (by category, where appropriate) all the Protected Material that was returned or destroyed 22 and that affirms that the Receiving Party has not retained any copies, abstracts, compilations, 23 summaries or other forms of reproducing or capturing any of the Protected Material. 24 Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, 25 motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such 26 materials contain Protected Material. Any such archival copies that contain or constitute Protected 27 Material remain subject to this Protective Order as set forth in Section 4, above. 28 ... -9- Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 12. MISCELLANEOUS 2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 3 seek its modification by the court in the future. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 5 no Party waives any right it otherwise would have to object to disclosing or producing any 6 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 7 Party waives any right to object on any ground to use in evidence of any of the material covered by 8 this Protective Order. 9 12.3 Filing Protected Material. Without written permission from the Designating Party or a 10 court order secured after appropriate notice to all interested persons, a Party may not file in the 11 public record in this action any Protected Material. Protected Material may only be filed under seal 12 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 13 12.4 Nothing in this Order shall be construed as an admission as to the relevance, 14 authenticity, foundation or admissibility of any document, material, transcript or other 15 information. 16 IT IS SO STIPULATED BY AND BETWEEN THE PARTIES THROUGH THEIR 17 COUNSEL OF RECORD: 18 October 20 Dated: _________________, 2020 By: _______________________________ 19 Mia Hong KARNS & KARNS, LLP 20 Attorneys for Plaintiff DEBRA LYSTAD 21 Dated: October 29 _________________, 2020 By: _______________________________ 22 Robert K. Phillips Alyce W. Foshee 23 Darya Landa PHILLIPS, SPALLAS & ANGSTADT LLP 24 Attorneys for Defendant Walmart Inc. 25 PURSUANT TO STIPULATION, IT IS SO ORDERED. 26 27 Dated: __________________, 2020 _______________________________ 28 JUDGE OF THE SUPERIOR COURT - 10 - Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________, of _________________________, declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order agreed upon by 6 the parties in the action styled Debra Lystad v. Walmart Inc., et al. County of Fresno, Superior Court 7 Case No. 20CECG00864. 8 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order unless 9 and until modified by any court Order. I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 11 disclose in any manner any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the courts in and for the state of California for the 14 purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings 15 occur after termination of this action. 16 17 Date: ________________ 18 19 City and State where sworn and signed: _________________________________ 20 21 Print Name: ______________________________ 22 23 Signature: ________________________________ 24 25 26 27 28 - 11 - Case No. 20CECG00864 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 PROOF OF SERVICE Debra Lystad v. Walmart Inc, a Corporation; Mike Mansker, 2 an individual; and DOES 1 through 50, inclusive, California Superior Court, County of Fresno, Case No.: 20CECG00864 3 I am employed in the County of San Francisco, State of California. I am over the age of 18 and am 4 not a party to the within action; that my business address is PHILLIPS SPALLAS & ANGSTADT LLP, 5 505 Sansome Street, Sixth Floor, San Francisco, CA 94111. 6 On November 3, 2020, I served the foregoing document(s) described as: 1. STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER 7 8 on all other parties and/ or their attorney(s) of record to this action as follows: 9 Michael Karns, Esq. William Karns, Esq. 10 Mia Hong, Esq. Karns & Karns, LLP 11 10801 National Blvd, Suite 335 Los Angeles, CA 90064 12 bkarns@karnsandkarns.com Mia@karnsandkarns.com 13 kim@karnsandkarns.com 14 [ ] BY MAIL SERVICE: by placing such envelopes for collection and to be mailed on this date following ordinary business practices. 15 [ X] BY E-MAIL: based on a court order or an agreement of the parties to accept service by e-mail or 16 electronic transmission, I caused the document to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, an electronic message or 17 other indication that the transmission was unsuccessful. [ ] By First Legal EFiling Electronic Service: Complying with Code of Civil 18 Procedure section 1010.6, I caused such documents (s) to be electronically served through the First Legal EFiling system for the above-entitled case to the parties on the Service List maintained on First 19 Legal EFiling website for this case. Upon completion of said transmission of said document(s), a certified receipt is issued to filing party acknowledging receipt by First Legal EFiling's system. The 20 file transmission was reported as complete and copy of the First Legal EFiling Receipt will be maintained with original documents in our office. 21 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 3, 2020, at Novato, California. 23 24 _____________________________ Erik Cervantes 25 26 27 28