Opinion
CIVIL 3:18-cv-01932 (ADC-GLS)
11-18-2021
EVELYN LLANOS TORRES, Plaintiff, v. HOME DEPOT PUERTO RICO INC., ET AL. Defendants.
CONFIDENTIALITY ORDER
GISELLE LOPEZ-SOLER, U.S. MAGISTRATE JUDGE
The Defendant Home Depot Puerto Rico Inc. has submitted for the Court's consideration, and for good cause shown, the Court hereby enters, the following Confidentiality Order:
1. This Order shall govern the disclosure of materials designated as Confidential Material in this mediation process. Confidential Material, as used in this Order, shall refer to any document or item designated as Confidential, including but not limited to, the SOP FE-05-10, Processing POS Markups and Markdowns, the SOP INV-06-10 Markups and Markdowns or any other documents or items that may be produced during the confidential mediation process for this case, all copies thereof, and the information contained in such material. Nothing in this Order shall require any party to produce any specific documents or category of documents which a party deems inappropriate for production.
Definitions of Confidential Material
2. Confidential Material, as used in this Order, consists of the following materials and categories of materials (herein, "Confidential Material"): 1
a. Materials relating to any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in the Federal Rules of Civil Procedure (Fed. R. Civ.) and any applicable case law interpreting Fed. R. Civ. 26(c)(1)(G); contracts; non-public compilations of retail prices; proprietary information; vendor agreements; personnel files; claim/litigation information; and nonpublic policies and procedures shall be deemed Confidential.
b. Materials containing corporate trade secrets, nonpublic research and development data, including, but not limited to, cost data, pricing formulas, inventory management programs, and other sales or business information not known to the public; information obtained from a non-party pursuant to a non-disclosure agreement; and customer-related Protected Data shall be deemed Highly Confidential - Attorneys' Eyes Only.
c. Protected Data shall refer to any information that a party believes in good faith to be subject to federal, state, or foreign data protection laws or other privacy obligations. Examples of such data protection laws include but are not limited to the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); and the Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly Confidential - Attorneys' Eyes-Only material, in which event the parties shall meet and confer in good faith, and, ifunsuccessful, shall move the Court for appropriate relief.
3. The Confidential Material described in paragraph 2 is protected pursuant to this order to prevent injury through disclosure to persons other than those persons involved in the Confidential Mediation.
Procedure for Designating Information as Confidential
4. To designate information as confidential, the Producing Party shall mark Confidential Material with the legend “CONFIDENTIAL”. The Receiving Party may make copies of Confidential Material and such copies shall become subject to the same protections as the Confidential Material from which those copies were made. 2
a. Information on a disk or other electronic format (e.g., a native format production) may be designated confidential by marking the storage medium itself (or the native file's title) with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY.” The Receiving Party shall mark any hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend contained on the original and such copies shall become subject to the same protections, as the Confidential Material from which those copies were made.
5. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence (FRE) 502(d) and shall be enforceable and granted full faith and credit in all other state and federal proceedings by 28 U.S. Code § 1738. In the event of any subsequent conflict of law, the law that is most protective of privilege and work product shall apply.
Who May Receive Confidential Information
6. Confidential Material. Any Confidential Material and the information contained therein shall be disclosed only to the Court, its staff, in-house counsel and counsel of record for each party, and also shall be disclosed on a need-to-know basis only to the parties, counsel's staff personnel, employees of a party to whom disclosure is necessary in connection with the preparation for mediation and trial of this action, and any witnesses in the case (including consulting and testifying experts) as may from time to time reasonably be necessary in prosecution or defense of this action.
7. Duties in the Event of Unauthorized Disclosures. It shall be the obligation of counsel, upon learning of any unauthorized disclosure or threatened unauthorized disclosure of Confidential Information, or any other breach or threatened breach of the provisions of this Order, to promptly notify counsel for the Producing Party. The notification shall be supplemented with reasonable details of the circumstances of the disclosure to permit the Producing Party to understand and take appropriate steps. Each party and its counsel agree to take reasonable 3 and good-faith efforts to contain or limit any breach promptly upon receiving notice of it, and to make reasonable and good-faith attempts to retrieve any unauthorized disclosure of documents or information.
Authorized Uses of Confidential Material
8. Confidential Material shall, at this time, only be used for the purpose of this confidential mediation and litigation only.
9. Persons having knowledge of Confidential Material and information due to their participation in the conduct of this litigation shall use such knowledge and information only as permitted herein, and shall not disclose such Confidential Material, their contents or any portion or summary thereof to any person(s) not involved in the conduct of this mediation or litigation.
10. If any person having access to the Confidential Material herein shall violate this Order, he/she may be subject to sanctions by the Court and may be liable to pay for the damages caused by his/her violation.
Confidential Material In Filings, Hearings, and Trial
11. Confidential Material in Filings. Without written permission from the Producing Party or Court order secured after appropriate notice to all interested persons, a party may not file the Confidential Material produced in this mediation in the public record in this action (or in any other action, such as an appeal). A party that seeks to file under seal any Confidential Material must comply with Fed. R. Civ. 26(c) and F.R.E. 501 and 502. Confidential Material may only be filed under seal in a manner prescribed by the Court for such filings and in compliance with Standing Order #9. 4
12. Confidential Material in Hearings and Trial. The provisions of this Order shall not affect, and this Order does not limit, the admissibility of Confidential Material (or references to that material) as evidence at trial, or during a hearing or similar proceeding in this action or documents produced during the discovery proceedings in this action. Prior to using Confidential Material or the information contained therein at any hearing that is open to the public, the party seeking to use the Confidential Material must give at least seven (7) days advance notice to the Producing Party of the intent to use the Confidential Material so that the Producing Party may seek an appropriate Court order to protect the Confidential Material.
Continuing Effect of this Order and Duty to Destroy
13. This Order shall apply to all documents produced during the mediation of this case regardless of whether they were provided before the date that this Order is signed and shall continue to be binding throughout and after the conclusion of this litigation, including all appeals. Within thirty (30) days of settlement or final adjudication, including the expiration or exhaustion of all rights to appeal or petitions for extraordinary writs, each party or non-party to whom any materials were produced shall, without further request or direction from the Producing Party, promptly destroy all documents, items or data received including, but not limited to, copies or summaries thereof, in the possession or control of any expert or employee. The Receiving Party shall submit a written certification to the Producing Party by the 30-day deadline that (1) confirms the destruction/deletion of all Confidential Material, and (2) affirms the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Material. Notwithstanding this provision, outside counsel is entitled to retain an archival copy of filings, depositions, and deposition exhibits. 5
Procedure if Confidential Material Is Required to be Produced
14. If any person receiving documents covered by this Order is served with a subpoena, order, interrogatory, or document or civil investigative demand (collectively, a “Demand”) issued in any other action, investigation, or proceeding, and such Demand seeks material that was produced or designated as Confidential Material by someone other than the Receiving Party, the Receiving Party shall give prompt written notice by hand or electronic transmission within five (5) business days of receipt of such Demand to the party or non-party who produced or designated the material as Confidential Material, and shall object to the production of such materials on the grounds of the existence of this Order. At the request of the party or non-party who produced or designated the material as Confidential Material, the Receiving Party shall refuse to comply with the Demand unless (a) ordered to do so by a court with jurisdiction over the Receiving Party; or (b) released in writing by the party or non-party who designated the material as Confidential Material. The burden of opposing the enforcement of the Demand shall fall upon the party or nonparty who produced or designated the material as Confidential Material. Compliance by the Receiving Party with any order of a court of competent jurisdiction, directing production of any Confidential Material, shall not constitute a violation of this Order.
15. In the event additional parties join or intervene in this litigation, the newly joined party(ies) shall be fully bound by this Order.
16. This Order shall remain in full force and effect until such time as it is modified, amended, or rescinded by the Court.
IT IS SO ORDERED. 6