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Reetz v. Lowe's Companies, Inc.

United States District Court, W.D. North Carolina, Statesville Division

November 1, 2019

BENJAMIN REETZ, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, and on BEHALF OF THE LOWE'S 401K PLAN, Plaintiffs,
v.
LOWE'S COMPANIES, INC., ADMINISTRATIVE COMMITTEE OF LOWE'S COMPANIES, INC., JOHN and JANE DOES 1-20, and AON HEWITT INVESTMENT CONSULTING, INC., Defendant.

          Kai H. Richter NICHOLS KASTER, PLLP Counsel for Plaintiff Benjamin Reetz

          Lars C. Golumbic, Sean C. Abouchedid, GROOM LAW GROUP, CHARTERED Appearing pro hac vice Counsel for Lowe's Companies, Inc., and the Administrative Committee of Lowe's Companies, Inc.

          Shannon M. Barrett O'MELVENY & MYERS LLP Appearing pro hac vice Counsel for Defendant Aon Hewitt Investment Consulting, Inc.

          CONSENT PROTECTIVE ORDER

          DAVID C. KEESLER, UNITED STATES MAGISTRATE JUDGE

         WHEREAS, Plaintiff Benjamin Reetz, individually and as the representative of a class of similarly situated persons, and on behalf of the Lowe's 401(K) Plan, and Defendants Lowe's Companies, Inc., Administrative Committee of Lowe's Companies, Inc., John and Jane Does 1-20, and Aon Hewitt Investment Consulting, Inc., hereafter referred to as “the Parties, ” collectively believe that certain information that is or will be encompassed by the Parties' discovery demands will involve the production or disclosure of trade secrets, confidential business information, confidential customer information, personal identifying information, and other highly sensitive information;

         WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with Federal Rule of Civil Procedure 26(c);

         THEREFORE, it is hereby stipulated among the Parties and ORDERED that upon a finding of good cause the following terms and conditions shall govern the disclosure and use of confidential and privileged information in this Action:

         DEFINITIONS GENERALLY

         1. Action. As used in this Protective Order, the term “Action” shall mean the above-captioned litigation.

         2. Non-Party. As used in this Protective Order, the term “non-party” shall mean any individual, corporation, association, or other natural person or entity that is not a named party to the Action. This Protective Order shall govern all documents, materials, and information disclosed during the course of this litigation in any form, including but not limited to, documents, materials, and information produced by a party or non-party (whether informally or in response to a subpoena), disclosed through testimony, and any other writings or things produced, given, or filed in this Action.

         3. Document. As used in this Protective Order, the term “document” is intended to be comprehensive and includes any and all materials in the broadest sense contemplated by Rule 34 of the Federal Rules of Civil Procedure, and shall include all written, oral, recorded, or graphic material, however produced or reproduced including, but not limited to: all written or printed matter of any kind, including the originals and all non-identical copies thereof, whether different from the originals by reason of any notation made on such copies or otherwise; electronically stored information, software, and other computer data including, but not limited to, information stored in a computer at any time; all graphic or manual records or representations of any kind including, but not limited to, photographs, microfiche, microfilm, videotape, records, and motion pictures; electronic, mechanical, or electric records or representations of any kind including, but not limited to, cassettes, discs, magnetic cards and recordings, optical and other media; and all drafts, alterations, modifications, changes, and amendments to any of the foregoing.

         4. Privilege. As used in this Protective Order, the term “privilege” shall mean the attorney-client privilege, the work-product doctrine, the common-interest doctrine, and any other privilege, protection, or immunity recognized by law.

         5. Personal Identifying Information. As used in this Protective Order, the term “Personal Identifying Information” may include, but is not limited to, Social Security Numbers; driver's license, passport, or state identification numbers; tax identification numbers; financial institution account numbers and records or credit card numbers; home addresses or phone numbers; and employment identification numbers or credentials of any individual.

         6. Confidential Material. As used in this Protective Order, the term “Confidential Material” means any document, material, or information supplied in any form, or any portion thereof, which the designating party reasonably believes to contain confidential or proprietary business, commercial or financial information; a trade secret; confidential research and development, credit, compliance, personnel, or administrative information; or any other commercial or personal information that is not publicly known. A party or non-party designating information as Confidential Material shall mark each page of the document (if imaged) containing such material as “Confidential.”

         7. Highly Confidential Material. As used in this Protective Order, the term “Highly Confidential Material” means any document, material, or information supplied in any form, or any portion thereof, which the designating party reasonably believes contains especially sensitive material, which may include, but is not limited to, confidential research and development, financial, technical, or any other sensitive trade secret information, information capable of being utilized for the preparation of a patent application dealing with such subject matter, or other highly sensitive commercial information that could cause the designating party to suffer business or competitive harm if publicly known, known by third parties, or known by other parties or other parties' agents or other parties' employees who would have access under the Protective Order to “Confidential Material.” Highly Confidential Material also includes any document containing personal identifying information of any individual, including without limitation social security numbers, passport numbers, home telephone addresses or phone numbers, and employment identification numbers or credentials. A party or non-party designating information as Highly Confidential Material shall mark each page of the document (if imaged) containing such material as “Highly Confidential - Outside Counsel Only.”

         8. Protected Material. Confidential Material and Highly Confidential Material may be collectively referred to herein as “Protected Material.”

         DESIGNATION OF PROTECTED MATERIAL

         9. Designating Protected Material. Any party or producing non-party may designate information as Protected Material. Protected Material shall be designated, at or prior to the time at which it is produced to the receiving party, by marking or stamping each page containing confidential information “Confidential” or “Highly Confidential - Outside Counsel Only.” Any copy, memorandum, summaries, or abstracts (excluding memoranda, summaries, or abstracts used solely internally by counsel of record to one of the Parties) containing Confidential Information or Highly Confidential - Outside Counsel Only Information shall likewise bear on its face the “Confidential” or “Highly Confidential - Outside Counsel Only” designation. All information so designated and all information derived therefrom shall be handled in strict accordance with the terms of this Protective Order.

         10. Changes to Designations. The production of Protected Material without a designation as Protected Material shall not be deemed a waiver or impairment of any claim of protection of the confidential nature of any such material. Any party or non-party who inadvertently fails to identify documents as “Confidential” or “Highly Confidential - Outside Counsel Only” shall, promptly upon discovery of its oversight, provide written notice of the error and substitute appropriately-designated documents, and thereafter such documents shall be treated as Protected Material under the terms of this Order. Any party receiving such inadvertently non-designated documents shall retrieve such documents from persons not entitled to receive those documents under this Order and, upon receipt of the substitute documents, shall return or destroy the improperly-designated documents.

         11. Any party may request a change in the designation of any information designated Protected Material. Any such document shall be treated as designated until the change is completed. If the requested change in designation is not agreed to, the party seeking the change may move the Court for appropriate relief, providing notice to any third party whose designation of produced documents as Protected Material in the action may be affected. The party asserting that the material is Protected Material shall have the burden of proving that information in question is within the scope of protection afforded by Fed.R.Civ.P. 26(c).

         12. Good Faith Representation. A designation by a party or non-party of Protected Material shall constitute a representation to the Court that such party or non-party believes in good faith that the information constitutes Confidential Material or Highly Confidential Material properly subject to protection under Fed.R.Civ.P. 26(c). The Parties and non-parties shall make a good-faith effort to designate information only as needed.

         13. Objections to Designation or Treatment. A receiving party may challenge a producing party's designation at any time. Any receiving party disagreeing with a designation may request in writing that the producing party change the designation. The producing party will then have ten (10) business days after receipt of a challenge notice to advise the receiving party whether or not it will change the designation. If the Parties are unable to reach agreement after the expiration of this ten (10) business day period, the receiving party may at any time thereafter seek an order to alter the confidential status of the Protected Material. Until any dispute under this Paragraph is ruled upon by the Court, the designation will remain in full force and effect, and the information will continue to be accorded the confidential treatment required by this Protective Order.

         14. Compliance with Laws Concerning Personal Identifying Information. Regardless of whether a document or other material is designated Confidential or Highly Confidential, and in addition to the restrictions on use of Confidential or Highly Confidential material contained in this Protective Order, all Parties shall comply with all applicable laws and regulations related to the protection of Personal Identifying Information, as defined in this order. The producing party may redact all Personal Identifying Information prior to production or other use or disclosure unless otherwise ordered by the Court.

         DISCLOSURE OF PROTECTED MATERIAL

         15. Confidential Material. Unless otherwise allowed under this Protective Order, Confidential ...


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