Motion_re_motion_to_have_home_depots_produced_documents_retain_confidential_designation_pursuant_to_stipulation_and_protective_order_request_for_monetary_sanctions_decl_of_robert_a_fisher_iiMotionCal. Super. - 2nd Dist.May 16, 2017Electronically FILED by Superior Court of California, County of Los Angeles on 10/21/2019 10:59 AM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Coreas,Deputy Clerk No 0 a N nn BA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 Robert A. Fisher II, Esq. (SBN 157523) Tracy L. Hughes, Esq. (SBN 232283) Greg K. Koeller, Esq. (SBN 312470) Koeller, Nebeker, Carlson & Haluck, LLP 3 Park Plaza, Suite 1500 Irvine, CA 92614-8558 949-864-3400; fax: 949-864-9000 Attorneys for Defendant HOME DEPOT USA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - SPRING STREET COURTHOUSE ALEX Al, Case No. BC658381 Plaintiff, Assigned for All Purposes to: Judge Christopher K. Lui — Dept. 4A v. Action Date: 05/16/17 HOME DEPOT USA, INC., NIVETTE Trial Date: 02/25/20 FIKRY, and DOES 1 to 25, inclusive, DEFENDANT HOME DEPOT USA, INC.’S MOTION TO HAVE HOME DEPOT’S PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION PURSUANT TO STIPULATION AND PROTECTIVE ORDER; REQUEST FOR MONETARY SANCTIONS; DECLARATION OF ROBERT A. FISHER Defendants. [Filed Concurrently with the Declaration of Bradley E. Nesmith; and [Proposed] Order] DATE: November 21, 2019 TIME: 1:30 p.m. DEPT.: 4A RESERVATION ID: 799907453247 r r ” N o ” N t ’ Na at Nc N e t N e a N a s t a “ a N a t e t ca a t “e a “ e e N a “s ea “ a ew e “ a N e “e we “ a e “ a e ” “ s e ” “ a e ” TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 21, 2019 at 1:30 p.m., or as soon thereafter as this matter may be heard in Department 4A of the above-entitled Court, Defendant, HOME DEPOT USA, INC. (hereinafter “Defendant”) will request an Order from the Court that certain 1 DEFENDANT'S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION wh NO 0 Na 10 11 12 13 14 15 16 17 18 19 20 21 98 23 24 25 26 27 28 881.009:376795v1 documents which have been produced in this action by Defendant and which have been designated as “Confidential” pursuant to the Stipulation and standing Protective Order, and to which Plaintiff has objected to this designation for those certain documents, shall retain their “Confidential” designation for all purposes in this action. Defendant will also move the Court for an order that Plaintiff ALEX AI (and/or his attorney) pay as sanctions the sum of § 2,600.00 as the reasonable costs and attorney fees incurred by Defendant for these proceedings. Good cause exists to grant this motion because Defendant’s documents were produced with a “Confidential” designation pursuant to the terms of the Stipulation and Protective Order and said documents were rightfully designated as such and should continue to retain this “Confidential” designation in this action in order to protect Defendant’s trade secrets, and proprietary and confidential information as well as the confidential and private information of third parties. Plaintiff's objections to these designations were filed only to annoy, harass, and unduly burden Defendant Home Depot. This motion is based upon this notice of motion, the attached memorandum of points and authorities, the declaration of Robert A. Fisher, Esq., the exhibits attached hereto in support of this motion, the records and files in this action, and upon such oral and documentary evidence that may be presented at the time of hearing of this motion. Defendant’s counsel met and conferred with Plaintiff pursuant to Code of Civil Procedure § 2016.040 as detailed in the Declaration of Robert A. Fisher filed herewith. DATED: October 21, 2019 Koeller, Nebeker, Carlson & Haluck, LLP i AO YA Robert A. Fisher II, Esq. Greg K. Koeller, Esq. Attorneys for Defendant HOME DEPOT USA, INC. 2 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION Oo 0 N N N nT B W N D N N D N N N N = m e e m e m e m e m e m e m e m e s N O A W N R O O N S N RA W O N = oe 28 881.009:376795v1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This matter arises from a simple incident occurring in Defendant Home Depot’s store located at 3500 Market Place, Monterey Park, CA 91755. Plaintiff Alex Ai was walking through the plumbing section of Defendant’s store when he reached up and grabbed a ventilation pipe off the shelf. Unfortunately, when doing so, another ventilation pipe fell off the shelf and struck Plaintiff on the nose. The pipe that struck Plaintiff was only four (4) inches long and caused a minor cut on his nose. Despite the fact that the pipe struck Plaintiff on the nose, Plaintiff is now claiming severe back and neck injuries. (Decl. of Robert A. Fisher, { 1). On or about October 1, 2019, both Defendant Home Depot and Plaintiff Alex Ai signed a Stipulation and Protective Order. (See Exhibit “A”). The underlying purpose for this Protective Order is that it aims to protect Defendant Home Depot’s disclosure of any of Home Depot’s trade secrets, and proprietary and confidential documents and information, as well as the confidential and private information of third parties. The release of these documents to the public would allow for the improper disclosure of this information to third-party competitors, such as Lowes, and other unauthorized individuals. While the Protective Order does limit the use of these “Confidential” documents outside this litigation, Plaintiff and his counsel are not prevented from using these documents in this litigation, at trial, from disclosing to Plaintiffs experts, consultants and mock juries, etc. As a result, Plaintiff is not prejudiced by the “Confidential” designation of these documents. (Decl. of Robert A. Fisher, § 2). Nonetheless, on or about October 7, 2019 — less than one week after Plaintiffs counsel signed the Protective Order — Plaintiff filed objections to the confidentiality designation of various documents produced by Home Depot to Plaintiff. (Decl. of Robert A. Fisher, § 3; See Exhibit “B”). Specifically, Plaintiff objects to the confidentiality designation to the following documents: (1) 3-page Asset Protection Reference Guide; (2) 3-page Asset Protecting Sign Manual; (3) 3-page Department 26 plumbing Safety Standards; (4) 1-page Standards for Merchandise on Floor or Sales Level; and (5) 2-page Store Readiness Checklist. (Id.) Plaintiff stated that the reason for his objections is that the “confidentiality agreement [will] limit the 3 DEFENDANTS MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION BH w n O w d N Wn 10 11 15 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 dissemination of information in order to reduce access to it by present or future claimants with regard to injury incidents in Defendant’s other stores who could and would use the information to their advantage.” (See Exhibit “B”). This is not a proper basis for objection. Instead, Plaintiff has merely objected to this designation with the sole purpose of annoying, harassing and subjecting Defendant to an undue burden. (Decl. of Robert A. Fisher, q 4). In an effort to resolve this matter amicably, Defendant’s counsel made sufficient efforts to meet and confer with Plaintiff's counsel pursuant to C.C.P. § 2016.040 regarding Plaintiff’s motive for objecting to the confidentiality designation. (Decl. of Robert A. Fisher, q 5; See Exhibit “C”). Plaintiff counsel’s rationale for objecting to the confidentiality designation is that the materials produced by Home Depot could ultimately be used in subsequent lawsuits filed by unrelated third-persons against Home Depot. This is clearly an improper motive. Unfortunately, Plaintiff's counsel has refused to withdraw the objections to Defendant’s designation of these documents as confidential. As a result, Defendant has been forced to seek Court interference by filing this subject Motion for Protective Order. (Id.) IL. GOOD CAUSE EXISTS TO ISSUE A PROTECTIVE ORDER Good cause exists to grant Defendant Home Depot’s motion and issue a protective order. Pursuant to California Code of Civil Procedure Section 2031.060(b)(5), the court may issue a protective order to protect the disclosure of trade secrets, proprietary, and financial information as well as the private information and documents of third parties. Also, “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code of Civil Procedure § 2025.420(b); Nativi v. Deutsche Bank Nat'l Trust Co., 223 Cal. App. 4th 261 (2014). The disputed documents are as follows: 3-Page Asset Protection Reference Guide 3-Page Asset Protection Sign Manual 3-Page Department 26 Plumbing Safety Standards 1-Page Standards for Merchandise on Floor or Sales Level 2-Page Store Readiness Checklist 4 DEFENDANT'S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION O 0 0 N Y B W R D N N D O N N N N = m m em e m e m e m e m e m e w N A L A W N R O Y e N N N RE W N = 28 881.009:376795v1 A. The Disputed Documents Contain Trade Secrets, and Proprietary and Confidential Information that Should Not Be Disclosed to the Public. As supported by the Declaration of Bradley E. Nesmith, the information contained within Home Depot’s Standard Operating Procedures and Store Readiness Checklist, etc. are the culmination of years of work, time, and experience on behalf of Home Depot. These documents most certainly contain trade secrets and proprietary information that should not be easily accessible to outside third-parties. Home Depot has a legal right to protect their work product and ensure that information concerning how they run their businesses is not improperly disseminated to competitors and the public as a whole. (Decl. of Robert A. Fisher, § 7; See Decl. of Bradley E. Nesmith). Home Depot maintains a set of core operating policies, procedures and training guides, collectively referred to as Standard Operating Procedures (“SOPs”). The department charged with the compilation, preparation, dissemination and maintenance of Home Depot’s Corporate Compliance SOPs are under the direct supervision of Bradley E. Nesmith — Home Depot’s Senior Director Internal Audit and Corporate Compliance. (Declaration of Bradley E. Nesmith, 3). Home Depot employs two (2) technical writers who are dedicated full-time to the task of developing and maintaining SOPs. (Id. 1 4). Home Depot utilizes the collective knowledge and experience of associates with unique knowledge and experience in the construction/building industry and the home renovation industry in order to develop its unique business operating systems and its standard operating procedures, and continues to utilize that knowledge and experience as it refines and improves its operating systems and procedures. (Id. 6). Home Depot's SOPs are a memorialization of over 40 years of experience in the industry, the compilation of the knowledge and expertise of Home Depot’s associates and the refinement of its best practices. (Id.) Home Depot’s SOPs are living documents, and the process of developing new standard operating procedures or revising existing standard operating procedures is a significant undertaking requiring collaborative effort and often several months to complete. (Id. § 7). Home Depot estimates that it takes approximately five (5) hours per page to develop a new, or modify 5 DEFENDANTS MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION Oo 0 NN N n Bs W N RO N N R N N N m m em e m e m e m em e m e m N N R A W N = O V N N N A W N mR, o o 28 881.009:376795v1 an existing, procedure. (Id. § 8). The estimated time spent developing the current set of SOPs exceeds tens of thousands of hours of labor. (Id.) Home Depot’s investment in the development of its unique standard operating procedures is substantial, and the public disclosure of these SOPs would be detrimental to Home Depot’s business interests. (1d. § 9). Home Depot is the leading home improvement retailer and maintains its competitive advantage, in part, by being at the forefront of innovative business ideas, practices and operations. Home Depot has been able to attain and maintain its position in the industry by taking advantage of the collective experience and know-how of its associates and by investing resources to develop sound operating practices and a unique manner of doing business, all of which are embodied, in part, in Home Depot’s SOPs. (Id.) This advantage would be greatly diminished if Home Depot’s SOPs were publicly disclosed, thereby making them available to Home Depot’s competitors. (1d.) Home Depot considers its SOPs to be proprietary and confidential and treats them accordingly. (Id. § 10). Home Depot strictly controls the dissemination of its SOPs and any portions thereof, and the SOPs are not published and/or disseminated as a whole. Home Depot does not publish any portion of its SOPs at trade shows or forums and does not share the SOPs with other companies in the industry. (Id.) Home Depot does not provide any portion of its SOPs to parties outside of the company except under certain limited circumstances, such as in response to state and local regulatory inquiries and when required in litigation. (Id.) Even under these limited instances, Home Depot endeavors to obtain protection for the confidentiality of its SOPs to the greatest extent possible. (1d.) To disclose Home Depot’s SOPs publicly, thereby providing access to the company’s competitors in an industry that does not share its written operating procedures, would be extremely damaging to Home Depot’s business interests. (Id.) If Home Depot’s internal documents are made available to the public, Home Depot would be concerned that it would lose some competitive advantage as a result of internal confidential business procedures and information being made available to the public, including competitors. (Id. § 16) /11 111 11 6 DEFENDANT'S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION Ww No 0 d N nn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 B. The Disputed Documents May be Used by Plaintiff in this Litigation Even if they are Marked as “Confidential”; Thus Plaintiff Is Not Hindered by the Confidentiality Designation. The Stipulation and Protective Order, signed by both parties, provides that even documents designated as “Confidential” may be used in this litigation and at trial, and may be shared with experts and other persons needed in order to prepare for trial. (Decl. of Robert A. Fisher, 8; See Exhibit “A”). Accordingly, Plaintiff and his counsel are not hindered in any way by the designation of these documents and the protection afforded under the Stipulation. (Id.) The underlying reason for the Stipulation is to protect Defendant Home Depot’s trade secrets, proprietary, and financial information as well as the private information and documents of third parties. (As outlined in the Declaration of Bradley E. Nesmith). Plaintiff’s objection to the confidentiality designation of the disputed documents rests solely on Plaintiff's improper and baseless assertion that these documents should not be deemed confidential in order to allow for the dissemination of this information to “future claimants” with regard to the injury incidents in Home Depot’s stores. (Decl. of Robert A. Fisher, | 9; See Exhibit “B”). This is clearly not a proper reason to remove the confidentiality designation for these documents. It is important to note that Plaintiff did not object to the confidentiality designation given to the documents involving Plaintiff himself. (Id., § 10). Plaintiff's objections amount to nothing more than “harassment, annoyance and an undue burden” now requiring Defendant Home Depot to file this motion to protect the confidentiality of these documents after the parties already agreed to a protective order keeping these documents confidential. Defendant Home Depot entered into this Stipulation in good faith so that the parties could actively participate in discovery (and prevent what would likely have been numerous motions for protective orders). (Decl. of Robert A. Fisher, § 11). The documents at issue are in fact proprietary to Home Depot and should remain confidential. The release of these documents to the public would allow for the improper disclosure of this information to third-party competitors, such as Lowes, and other unauthorized individuals. Overall, the purpose of the confidentiality agreement was to allow the information to be 7 DEFENDANT'S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION IS N NO 0 1 O N Wa 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 produced for Plaintiff’s use in this lawsuit, as well as protect the information from being disseminated to Home Depot’s competitors and other third parties who have no right to this information and/or the way it is organized and used by Home Depot. Both parties signed this agreement and Home Depot subsequently produced all documents requested by Plaintiff. Home Depot has not concealed or blocked disclosure of any information to Plaintiff — Plaintiff has all information needed to proceed with his claims. Home Depot merely seeks to protect its proprietary information from unlawful dissemination to the public, II. DEFENDANT IS ENTITLED TO MONETARY SANCTIONS Defendant Home Depot also moves the Court for an order that Plaintiff Alex Ai (and/or his attorney) pay as Sanctions the sum of $ 2,600.00 as the reasonable costs and attorney fees incurred by Defendant for these proceedings. Prior to this motion, Defendant’s counsel made a reasonable and good faith effort to resolve informally the issue presented by repeatedly explaining Defendant’s position via a lengthy series of email correspondence. (See Email Chain in Exhibit “C”). Unfortunately, Plaintiff’s counsel was not interested in considering Defendant’s position, and refused to withdraw Plaintiff’s objection to Defendant’s designation of these materials as confidential. (Decl. of Robert A. Fisher, 9 12). Because of Plaintiff’s refusal to resolve this issue without court interference, Defendant has incurred and will incur fees, reasonable costs, and attorney fees for bringing this motion in the amount of § 2,600.00 consisting of the following: ® Fees to Meet and Confer and Prepare and File Motion: $740 e Fees to Evaluate Plaintiff’s Opposition and Draft Reply Papers: $675 ¢ Fees to Prepare for Oral Argument and Attend Hearing: $1,125 e Filing Fee for Motion: $60 (Decl. of Robert A. Fisher, 13; See Exhibit “D”). These sums are supported by the attached Exhibit “D”: a copy of Defense counsel’s billing records showing the number of hours spent by each attorney on each task, their billing rate, and the filing fee paid for this motion. 8 DEFENDANT'S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION 1 | IV. CONCLUSION 2 Based on the foregoing, Defendant HOME DEPOT U.S.A, INC. respectfully requests its 3 | motion for Home Depot’s documents designated as “Confidential” pursuant to the Stipulation and 4 | Protective Order retain this designation and that Plaintiffs objections to this designation are 5 | overruled. Additionally, Defendant Home Depot also requests this Court order Plaintiff (and/or 6 | his attorney) to pay monetary sanctions to Defendant in the amount of $ 2,600.00. 7 8 | DATED: October 21, 2019 Koeller, Nebeker, Carlson & Haluck, LLP 0 AEE Robert A. Fisher II, Esq. 11 Greg K. Koeller, Esq. Attorneys for Defendant 12 HOME DEPOT USA. INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 881.009:376795v1 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION Oo 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 DECLARATION OF ROBERT A. FISHER I, ROBERT A. FISHER, declare: I am an attorney, duly licensed to practice law in all the courts of the State of California, and am a partner in the law firm of Koeller, Nebeker, Carlson & Haluck, attorneys of record for Defendant, HOME DEPOT USA, INC. As such, I have personal knowledge of the files and pleadings in this matter, as well as the facts stated below. If called upon as a witness, I could and would competently testify as follows: 1, This matter arises from a simple incident occurring in Defendant Home Depot’s store located at 3500 Market Place, Monterey Park, CA 91755. Plaintiff Alex Ai was walking through the plumbing section of Defendant’s store when he reached up and grabbed a ventilation pipe off the shelf. Unfortunately, when doing so, another ventilation pipe fell off the shelf and struck Plaintiff on the nose. The pipe that struck Plaintiff was only four (4) inches long and caused a minor cut on his nose. Despite the fact that the pipe struck Plaintiff on the nose, Plaintiff 1s now claiming severe back and neck injuries. 2. On or about October 1, 2019, both Defendant Home Depot and Plaintiff Alex Ai signed a Stipulation and Protective Order. The underlying purpose for this Protective Order is that it aims to protect Defendant Home Depot’s disclosure of any of Home Depots trade secrets, and proprietary and confidential documents and information, as well as the confidential and private information of third parties. The release of these documents to the public would allow for the improper disclosure of this information to third-party competitors, such as Lowes, and other unauthorized individuals. While the Protective Order does limit the use of these “Confidential” documents outside this litigation, Plaintiff and his counsel are not prevented from using these documents in this litigation, at trial, from disclosing to Plaintiff's experts, consultants and mock juries, etc. As a result, Plaintiff is not prejudiced by the “Confidential” designation of these documents. Attached hereto as Exhibit “A” is a true and correct copy of the Stipulation and Protective Order to Designate Home Depot’s Documents as Confidential. 3. Nonetheless, on or about October 7, 2019 — less than one week after Plaintiffs counsel signed the Protective Order — Plaintiff filed objections to the confidentiality designation 10 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION wn RA W N Oo ® J On 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 of various documents produced by Home Depot to Plaintiff. Attached hereto as Exhibit “B” is a true and correct copy of Plaintiff's Objections. 4. Plaintiff stated that reasons for his objections is that the “confidentiality agreement [will] limit the dissemination of information in order to reduce access to it by present or future claimants with regard to injury incidents in Defendant’s other stores who could and would use the information to their advantage.” This is not a proper basis for objection. Instead, Plaintiff has merely objected to this designation with the sole purpose of annoying, harassing and subjecting Defendant to an undue burden. 5. In an effort to resolve this matter amicably, Defendant’s counsel made sufficient efforts to meet and confer with Plaintiff's counsel regarding Plaintiff’s motive for objecting to the confidentiality designation. Plaintiff counsel’s rationale for objecting to the confidentiality designation is that the materials produced by Home Depot could ultimately be used in subsequent lawsuits filed by unrelated third-persons against Home Depot. This is clearly an improper motive. Unfortunately, Plaintiff's counsel has refused to withdraw the objections to Defendant’s designation of these documents as confidential. As a result, Defendant has been forced to seek Court interference by filing this subject Motion for Protective Order. Attached hereto as Exhibit “C” is a true and correct copy of the email chain between Defense and Plaintiff's counsel illustrating Defense counsel’s meet and confer efforts. 6. Plaintiff objects to the confidentiality designation to the following documents: (1) 3-page Asset Protection Reference Guide; (2) 3-page Asset Protecting Sign Manual; (3) 3-page Department 26 plumbing Safety Standards; (4) 1-page Standards for Merchandise on Floor or Sales Level; and (5) 2-page Store Readiness Checklist. 7. As supported by the Declaration of Bradley E. Nesmith, the information contained within Home Depot’s Standard Operating Procedures and Store Readiness Checklist, etc. are the culmination of years of work, time, and experience on behalf of Home Depot. These documents most certainly contain trade secrets and proprietary information that should not be easily accessible to outside third-parties. Home Depot has a legal right to protect their work product and ensure that information concerning how they run their businesses is not improperly disseminated 11 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION = Oo 00 9 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 to competitors and the public as a whole. 8. The Stipulation and Protective Order, signed by both parties, provides that even documents designated as “Confidential” may be used in this litigation and at trial, and may be shared with experts and other in preparation for trial. As a result, Plaintiff and his counsel are not hindered in any way by the designation of these documents and the protection afforded under the Stipulation. 9. Plaintiff’s objection to the confidentiality designation of the disputed documents rests solely on Plaintiff's improper and baseless assertion that these documents should not be deemed confidential in order to allow for the dissemination of this information to “future claimants” with regard to the injury incidents in Home Depot’s stores. 10. Itis important to note that Plaintiff did not object to the confidentiality designation given to the documents involving Plaintiff himself. 11. Plaintiff's objections amount to nothing more than “harassment, annoyance and an undue burden” now requiring Defendant Home Depot to file this motion to protect the confidentiality of these documents after the parties already agreed to a protective order keeping these documents confidential. Defendant Home Depot entered into this Stipulation in good faith so that the parties could actively participate in discovery (and prevent what would likely have been numerous motions for protective orders). 12. Prior to this motion, I made a reasonable and good faith effort to resolve informally the issue presented by this motion by filing official objections to Plaintiff’s deposition requests, and explaining Defendant’s position via email correspondence. Unfortunately, Plaintiff’s counsel was not interested in considering Defendant’s position, and refused to withdraw Plaintiff’s objections. 13. Because of Plaintiff's refusal to resolve this issue without court interference, Defendant has incurred and will incur fees, reasonable costs, and attorney fees for bringing this motion in the amount of $2,600.00. 14. Attached hereto as Exhibit “D” is a chart showing the number of hours spent by each attorney on each task, their billing rate, and the filing fee paid for this motion. My billing 12 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION ~~ W N SS N o LL 0 O N Wn 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 rate is $225 an hour. My associate, Greg K. Koeller, who prepared the opening papers for this Motion, has a current billing rate of $175 an hour. I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed on this 21st day of Erion Visi ) a |=" = ROBERT A. FISHER, Declarant 13 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION EXHIBIT A EXHIBIT A W e 3 O N pb W N ee El ec tr on ic al ly R e c e i v e d 1 0 / 0 1 / 2 0 1 9 02 :4 8 P M N E R R B R E B R E R E R Z E I a L E o n = = 28 881.009:370470v1 FILED Supariw Cour of California Robert A. Fisher II, Esq. (SBN 157523) Counly of Los Angeles Tracy L. Hughes, Esq. (SBN 232283) Koeller, Nebeker, Carlson & Haluck, LLP 10/03/2018 3 Park Plaza, Suite 1500 Sree A Garter, Ewes t Dimer Ses of Sout Irvine, CA 92614-8558 Be: 5. Gracyk Deputy 949-864-3400; fax: 949-864-9000 . Attorneys for Defendant HOME DEPOT USA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - SPRING STREET COURTHOUSE ALEX Al, Case No. BC658381 Plaintiff, Assigned for All Purposes to: Judge Christopher K. Lui — Dept. 4A Vv. Action Date: 05/16/17 HOME DEPOT USA, INC, NIVETTE Trial Date: ~~ 02/25/20 FIKRY, and DOES 1 to 25, inclusive, STIPULATION AND PROTECTIVE ORDER — CONFIDENTIAL DESIGNATION ONLY Defendants. fr et ” Na rr ” “a t” M a ” Na as ” Ne t Ne a es t” se e” N s ” N e ” “m s” IT IS HEREBY STIPULATED by and between Plaintiff, ALEX Al and Home Depot USA, Inc., by and through their respective counsel of record, that in order to facilitate the exchange of information and documents which may be subject to confidentiality limitations on disclosure due to federal laws, state laws, and privacy rights, the Parties stipulate as follows: 1. In this Stipulation and Protective Order, the words set forth below shall have the following meanings: a. “Proceeding” means the above-entitled proceeding BC658381. b. “Court” means the Hon. Christopher K. Lui or any other judge to which this Proceeding may be assigned, including Court staff participating in such proceedings. c. “Confidential” means any information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential 1 STIPULATION AND PROTECTIVE ORDER —~ CONFIDENTIAL DESIGNATION ONLY Electr on ic al ly Re ce iv ed 10 /0 1/ 20 19 02 :4 8 P M O 0 0 N N t h B W R em N O R N O N N N = — 28 881.009:370470v1 treatment under applicable law. d. “Confidential Materials” means any Documents, Testimony or Information as defined below designated as “Confidential” pursuant to the provisions of this Stipulation and Protective Order. e. “Designating Party” means the Party that designates Materials as “Confidential.” f. “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give or make available Materials, or any part thereof, or any information contained therein. g. “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as those terms are defined by California Evidence Code Sections 250, 255, and 260, which have been produced in discovery in this Proceeding by any person, and (ii) any copies, reproductions, or summaries of all or any part of the foregoing. h. “Information” means the content of Documents or Testimony. i “Testimony” means all depositions, declarations or other testimony taken or used in this Proceeding. 2, The Designating Party shall have the right to designate as “Confidential” any Documents, Testimony or Information that the Designating Party in good faith believes to contain non-public information that is entitled to confidential treatment under applicable law. 3: The entry of this Stipulation and Protective Order does not alter, waive, modify, or abridge any right, privilege or protection otherwise available to any Party with respect to the discovery of matters, including but not limited to any Party’s right to assert the attorney-client privilege, the attorney work product doctrine, or other privileges, or any Party’s right to contest any such assertion. 4. Any Documents, Testimony or Information to be designated as “Confidential” must be clearly so designated before the Document, Testimony or Information is Disclosed or produced. The parties may agree that the case name and number are to be part of the Confidential” designation. The “Confidential” designation should not obscure or interfere with the legibility of the designated Information. 2 STIPULATION AND PROTECTIVE ORDER ~ CONFIDENTIAL DESIGNATION ONLY O 0 9 N Y B W B O D N O R OR M O R ON OR em e e em w — EE Y E E N E E = E C E E E S T E - R v I r v «S l ar 28 §81.009:370470v1 a. For Documents {apart from transcripts of depositions or other pretrial or trial proceedings), the Designating Party must affix the legend “Confidential” on each page of any Document containing seh designated Confidential Material. b. For Testimony given in depositions the Designating Party may either: i. identify on the record, before the close of the deposition, all “Confidential” Testimony, by specifying all portions of the Testimony that qualify as “Confidential,” or ii. designate the entirety of the Testimony at the deposition as “Confidential” (before the deposition is concluded) with the right to identify more specific portions of the Testimony as to which protection is sought within 30 days following receipt of the deposition transcript. In circumstances where portions of the deposition Testimony are designated for protection, the transcript pages containing “Confidential” Information may be separately bound by the court reporter, who must affix to the top of each page the legend “Confidential,” as instructed by the Designating Party. c. For Information produced in some form other than Documents, and for any other tangible items, including, without limitation, compact discs or DVDs, the Designating Party must affix in a prominent place on the exterior of the container or containers in which the Information or item is stored the legend “Confidential.” If only portions of the Information or item warrant protection, the Designating Party, to the extent practicable, shall identify the “Confidential” portions. 5. The inadvertent production by any of the undersigned Parties or non-Parlies to the Proceedings of any Document, Testimony or Information during discovery in this Proceeding without a “Confidential” designation, shall be without prejudice to any claim that such item is “Confidential” and such Party shall not be held to have waived any rights by such inadvertent production. In the event that any Document, Testimony or Information that is subject to a “Confidential” designation is inadvertently produced without such designation, the Party that inadvertently produced the document shall give written notice of such inadvertent production 3 STIPULATION AND PROTECTIVE ORDER —- CONFIDENTIAL DESIGNATION ONLY LO 0 N N N th Bs W O R ) es RD O N N N N N W 9 8 B R E B R N = 8 DP ® 1 9 a a R oB R o S 28 881.008:370470v1 within twenty (20) days of discovery of the inadvertent production, together with a further copy of the subject Document, Testimony or Information designated as “Confidential” (the “Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the Party that received the inadvertently produced Document, Testimony or Information shall promptly destroy the inadvertently produced Document, Testimony or Information and all copies thereof, or, at the expense of the producing Party, return such together with all copies of such Document, Testimony or Information to counsel for the producing Party and shall retain only the “Confidential” designated Materials. Should the receiving Party choose to destroy such inadvertently produced Document, Testimony or Information, the receiving Party shall notify the producing Party in writing of such destruction within ten (10) days of receipt of written notice of the inadvertent production. This provision is not intended to apply to any inadvertent production of any Information protected by attorney-client or work product privileges. In the event that this provision conflicts with any applicable law regarding waiver of confidentiality through the inadvertent production of Documents, Testimony or Information, such law shall govern. 6. In the event that counsel for a Party receiving Documents, Testimony or Information in discovery designated as “Confidential” objects to such designation with respect to any or all of such items, said counsel shall advise counsel for the Designating Party, in writing, of such objections, the specific Documents, Testimony or Information to which each objection pertains, and the specific reasons and support for such objections (the “Designation Objections”). Counsel for the Designating Party shall have twenty (20) days from receipt of the written Designation Objections to either (a) agree in writing to de-designate Documents, Testimony or Information pursuant to any or all of the Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all designations on Documents, Testimony or Information addressed by the Designation Objections (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and all existing designations on the Documents, Testimony or Information at issue in such Motion shall remain in place. The Designating Party shall have the burden on any Designation Motion of establishing the applicability of its “Confidential” designation. In the event that the Designation Objections are neither timely agreed to nor timely 4 STIPULATION AND PROTECTIVE ORDER — CONFIDENTIAL DESIGNATION ONLY OO 0 9 SN Ln bs Ww N = N N N N N N ND a N 6 4 % EE OU RN ~ SS 0 o® » 3 a nm R E E L S 3 28 881.009:370470v1 addressed in the Designation Motion, then such Documents, Testimony or Information shall be de-designated in accordance with the Designation Objection applicable to such material. 7. Access to and/or Disclosure of Confidential Materials designated as “Confidential” shall be permitted only to the following persons: a. the Court; b. (1) Attorneys of record in the Proceedings and their affiliated attomeys, paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in the Proceedings and are not employees of any Party. (2) In-house counsel to the undersigned Parties and the paralegal, clerical and secretarial staff employed by such counsel. Provided, however, that each non-lawyer given access to Confidential Materials shall be advised that such Materials are being Disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to its terms; Cc, those officers, directors, partners, members, employees and agents of all non-designating Parties that counsel for such Parties deems necessary to aid counsel in the prosecution and defense of this Proceeding; provided, however, that prior to the Disclosure of Confidential Materials to any such officer, director, partner, member, employee or agent, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow the terms of such Order, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A; d court reporters in this Proceeding (whether at depositions, hearings, or any other proceeding); & any deposition, trial or hearing witness in the Proceeding who previously has had access to the Confidential Materials, or who is currently or was previously an officer, director, partner, member, employee or agent of an entity that has had access to the Confidential Materials; f any deposition or non-trial hearing witness in the Proceeding who previously did not have access to the Confidential Materials; provided, however, that each such witness given access to Confidential Materials shall be advised that such Materials arc being J STIPULATION AND PROTECTIVE ORDER —~ CONFIDENTIAL DESIGNATION ONLY S w No = E E -. v 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:370470v1 Disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to its terms; g. mock jury participants, provided, however, that prior to the Disclosure of Confidential Materials to any such mock jury participant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow the terms of such Order, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A. h. outside experts or expert consultants consulted by the undersigned Parties or their counsel in connection with the Proceeding, whether or not retained to testify at any oral hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such expert or expert consultant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain its terms to such person, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or threatened breach of this Stipulation and Protective Order by any such expert or expert consultant, to promptly notify counsel for the Designating Party of such breach or threatened breach; and i any other person that the Designating Party agrees to in writing. 8. Confidential Materials shall be used by the persons receiving them only for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever. 9. Any Party to the Proceeding (or other person subject to the terms of this Stipulation and Protective Order) may ask the Court, after appropriate notice to the other Parties to the Proceeding. to modify or grant relief from any provision of this Stipulation and Protective Order. 10. Entering into, agreeing to, and/or complying with the terms of this Stipulation and Protective Order shall not: i" i 6 STIPULATION AND PROTECTIVE ORDER — CONFIDENTIAL DESIGNATION ONLY © 0 0 9 vy t n A Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 £3 26 27 28 881.008:370470v1 a. operate as an admission by any person that any particular Document, Testimony or Information marked “Confidential” contains or reflects trade secrets, proprietary, confidential or competitively sensitive business, commercial, financial or personal information; or b. prejudice in any way the right of any Party (or any other person subject to the terns of this Stipulation and Protective Order): i. to seek a determination by the Court of whether any particular Confidential Material should be subject to protection as “Confidential” under the terms of this Stipulation and Protective Order; or il. to seek relief from the Court on appropriate notice to all other Parties to the Proceeding from any provision(s) of this Stipulation and Protective Order, either generally or as to any particular Document, Material or Information. 11. Any Party to the Proceeding who has not executed this Stipulation and Protective Order as of the time it is presented to the Court for signature may thereafter become a Party to this Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and filing the same with the Court, and serving copies of such signed and dated copy upon the other Parties to this Stipulation and Protective Order. 12. Any Information that may be produced by a non-Party witness in discovery in the Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as “Confidential” under the terms of this Stipulation and Protective Order, and any such designation by a non-Party shall have the same force and effect, and create the same dutics and obligations, as if made by one of the undersigned Parties hereto. Any such designation shall also function as a consent by such producing Party to the authority of the Court in the Proceeding to resolve and conclusively determine any motion or other application made by any person or Party with respect to such designation, or any other matter otherwise arising under this Stipulation and Protective Order. 13. If any person subject to this Stipulation and Protective Order who has custody of any Confidential Materials receives a subpoena or other process (“Subpoena”) from any government or other person or entity demanding production of Confidential Materials, the 7 STIPULATION AND PROTECTIVE ORDER —- CONFIDENTIAL DESIGNATION ONLY O W N N Bh BD W N = B R B N N R N N N ee e m —_— e - e m r— 28 881.009:370470v1 recipient of the Subpoena shall promptly give notice of the same by electronic mail transmission, followed by either express mail or overnight delivery to counsel of record for the Designating Party, and shall furnish such counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, in its sole discretion and at its own cost, move to quash or limit the Subpoena, otherwise oppose production of the Confidential Materials, and/or seek to obtain confidential treatment of such Confidential Materials from the subpoenaing person or entity to the fullest extent available under law. The recipient of the Subpoena may not produce any Documents, Testimony or Information pursuant to the Subpoena prior to the date specified for production on the Subpoena. 14. Nothing in this Stipulation and Protective Order shall be construed to preclude either Party from asserting in good faith that certain Confidential Materials require additional protection. The Parties shall meet and confer to agree upon the terms of such additional protection. 15. If, after execution of this Stipulation and Protective Order, any Confidential Materials submitted by a Designating Party under the terms of this Stipulation and Protective Order is Disclosed by a non-Designating Party to any person other than in the manner authorized by this Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate attention of the Designating Party. 16. This Stipulation and Protective Order is entered into without prejudice to the right of any Party to knowingly waive the applicability of this Stipulation and Protective Order to any Confidential Materials designated by that Party. If the Designating Party uses Confidential Materials in a non-Confidential manner, then the Designating Party shall advise that the designation no longer applies. 17. Where any Confidential Materials, or Information derived from Confidential Materials, is included in any motion or other proceeding governed by California Rules of Court, Rules 2.550 and 2.551, the party shall follow those rules. With respect to discovery motions or other proceedings not governed by California Rules of Court, Rules 2,550 and 2,551, the 8 STIPULATION AND PROTECTIVE ORDER — CONFIDENTIAL DESIGNATION ONLY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:370470v1 following shall apply: If Confidential Materials or Information derived from Confidential Materials are submitted to or otherwise disclosed to the Court in connection with discovery motions and proceedings, the same shall be separately filed under seal with the clerk of the Court in an envelope marked: “CONFIDENTIAL — FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED.” 18. The Parties shall meet and confer regarding the procedures for use of Confidential Materials at trial and shall move the Court for entry of an appropriate order. 19. Nothing m this Stipulation and Protective Order shall affect the admissibility into evidence of Confidential Materials, or abridge the rights of any person to seek judicial review or to pursue other appropriate judicial action with respect to any ruling made by the Court concerning the issue of the status of Protected Material. 20. This Stipulation and Protective Order shall continue to be binding after the conclusion of this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party may seek the written permission of the Designating Party or may move the Court for relief from the provisions of this Stipulation and Protective Order. To the extent permitted by law, the Court shall retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, even after the Proceeding is terminated. 21. Upon written request made within thirty (30) days after the settlement or other termination of the Proceeding, the undersigned Parties shall have thirty (30) days to either (a) promptly return to counsel for each Designating Party all Confidential Materials and all copies thereof (except thal counsel for each Party may maintain in its files, in continuing compliance with the terms of this Stipulation and Protective Order, all work product, and one copy of each pleading filed with the Court, (b) agree with counsel for the Designating Party upon appropriate methods and certification of destruction or other disposition of such Confidential Materials, or (c) as to any Documents, Testimony or other Information not addressed by sub-paragraphs (a) and (b), file a motion seeking a Court order regarding proper preservation of such Materials. To the extent permitted by law the Court shall retain continuing jurisdiction to review and rule upon the motion referred to in sub-paragraph (c) herein. 9 STIPULATION AND PROTECTIVE ORDER ~ CONFIDENTIAL DESIGNATION ONLY o O N N U r D W N ee N N N N N N N N em e e —_— e m pe [ J S G RE O N N S VY ® A e r m E m » Lo Zo oB 28 881.009:370470v1 22. After this Stipulation and Protective Order has been signed by counsel for all Parties, it shall be presented to the Court for entry. Counsel agree to be bound by the terms set forth herein with regard to any Confidential Materials that have been produced before the Court signs this Stipulation and Protective Order. 23. The Parties and all signatories to the Certification attached hereto as Exhibit A agree to be bound by this Stipulation and Protective Order pending its approval and entry by the Court. In the event that the Court modifies this Stipulation and Protective Order, or in the event that the Court enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective Order until such time as the Court may enter such a different Order. It is the Parties’ intent to be bound by the terms of this Stipulation and Protective Order pending its entry so as to allow for immediate production of Confidential Materials under the terms herein. This Stipulation and Protective Order may be executed in counterparts. DATED: 10-1-2019 LAW OFFICES OF ERIC K. CHEN hy / Ying Xu, Esq. Attorneys for Plaintiff, ALEX Al DATED: _,2019 Koeller, Nebeker, Carlson & Haluck, LLP ~ Robert A. Fisher II, Esq. Attorneys for Defendant, HOME DEPOT USA. INC. 10 STIPULATION AND PROTECTIVE ORDER ~ CONFIDENTIAL DESIGNATION ONLY © 0 N O N BR W R e s - o S 881.009:370470v1 ORDER GOOD CAUSE APPEARING, the Court hereby approves this Stipulation and Protective Order. . SER, IT IS SO ORDERED. 10/03/2019 > Theresa M. Traber / Judge HON EHRISFFOPHERKFE JUDGE OF THE SUPERIOR COURT Dated: 1} STIPULATION AND PROTECTIVE ORDER ~ CONFIDENTIAL DESIGNATION ONLY 881.009:370470v1 EXHIBIT A CERTIFICATION RE CONFIDENTIAL DISCOVERY MATERIALS 1 hereby acknowledge that I, [NAME], [POSITION AND EMPLOYER], am about to receive Confidential Materials supplied in connection with the Proceeding, Alex Ai v. Home Depot USA.. Inc. et al., Case No. BC658381. | certify that | understand that the Confidential Materials are provided to me subject to the terms and restrictions of the Stipulation and Protective Order filed in this Proceeding. T have been given a copy of the Stipulation and Protective Order; 1 have read it, and I agree to be bound by its terms. I understand that Confidential Materials, as defined in the Stipulation and Protective Order, including any notes or other records that may be made regarding any such materials, shall not be Disclosed to anyone except as expressly permitted by the Stipulation and Protective order. 1 will not copy or use, except solely for the purposes of this Proceeding, any Confidential materials obtained pursuant to this Protective Order, except as provided therein or otherwise ordered by the Court in the Proceeding. 1 further understand that I am to retain all copies of all Confidential Materials provided to me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in my personal custody until termination of my participation in this Proceeding, whereupon the copies of such Materials will be returned to counsel who provided me with such Materials. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this day of , 2019 at California. Signature Title Address City, State, Zip Telephone Number 12 STIPULATION AND PROTECTIVE ORDER — CONFIDENTIAL DESIGNATION ONLY EXHIBIT B EXHIBIT B 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YING XU, Esq. SBN 253254 SAMANTHA LARSEN, Esq. SBN 303980 KALEIGH RAGON, Esq. SBN 311582 LAW OFFICES OF ERIC K. CHEN 18725 E. Gale Ave. Suite 228 City of Industry, CA 91748 Tel: 626-810-6163 Fax: 626-810-3732 Attorney for Plaintiff, ALEX Al SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ALEX Al Case No.: BC658381 Plaintiff, Dept No.: 4 Plaintiff ALEX AI’s Objection to Vs. Confidentiality Designation HOME DEPOT U.S.A., INC, NIVETTE FIKRY, and DOES 1 to 25, inclusive, Action filed: May 16, 2017 Defendants. Trial Date: February 25, 2020 Plaintiff, ALEX AI, hereby objects to the confidentiality designation made by Defendant HOME DEPOT U.S.A., INC. to the following documents produced by Defendant 1, 3-page Asset Protection Reference Guide 2, 3-page Asset Protection Sign Manual 3, 3-page Department 26 plumbing Safety Standards 4, 1-page Standards for Merchandise on Floor or Sales Level 5, 2-page Store Readiness Checklist Confidentiality Designation Objection 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 Reasons for Objection The guides and standards produced consist of commonsense rules devoted to store cleanliness and customer safety. There is nothing in these documents that approaches proprietary or confidential material that deserves protection. Defendant will not suffer any specific and well-defined injury if these rules, standards, and guidelines are published and shared with the general public. It is apparent that Defendant HOME DEPOT’s motivation to insist on a confidentiality agreement is to limit the dissemination of information in order to reduce access to it by present or future claimants with regard to injury incident in Defendant’s other stores who could and would use the information to their advantage. DATED:10-7-2019 Respectfully submitted, LAW OFFICES OF ERIC K. CHEN Ying Xu, Esq. Samantha Larsen, Esq. Kaleigh Ragon, Esq. Attorneys for Plaintiff ALEX Al Confidentiality Designation Objection EXHIBIT C EXHIBIT C Greg Koeller From: Robert Fisher [Robert.Fisher@knchlaw.com] Sent: Friday, October 11, 2019 10:37 AM Cc: Greg Koeller Subject: RE: Alex Ai—Designation Objection- Meet and Confer From: Ying Xu [mailto:ying@ericchenlaw.com] Sent: Friday, October 11, 2019 10:22 AM To: Robert Fisher Subject: Re: Alex Ai—Designation Objection- Meet and Confer Dear Mr. Fisher, you already know my final position. I disagree that your client is trying to meet-and-confer "in good faith" when it has failed to respond to my clear and specific inquiry once and over again: what is the harm that would result from the disclosure? The law places the burden on the party seeking concealment of information to show good cause. The Stipulation signed by both parties reflects this rule of the law. Commonsense safety guidelines that Home Depot unilaterally designated as confidential are far from trade secret and they know it. The owner of a true trade secret can legitimately refuse to disclose the secret to anybody through a motion for protective order without revealing the alleged secret. Home Depot will not be able to satisfy that burden of proof. Thank you for your time. Have a great weekend, Ying Ying Xu, Attorney at Law Law Offices of Eric K Chen 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tel: 626.810.6163 Fax: 626.810.3732 Bs message 1s intended only for the use of the individual or entity to which it is addressed. and may contain information that 1s privileged. confidential and exempt from disclosure under applicable law. 1f the reader of this message 1s not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, vou are hereby notified that any dissemination. distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone. Thank you. On Fri, Oct 11, 2019 at 8:48 AM Robert Fisher wrote: Ying, With all due respect, freedom of information and American values have nothing to do with this issue. We both agreed to a protective order concerning these materials, and Home Depot produced these confidential documents in good faith, trusting that you would abide by our agreement to keep the information confidential. In response, you almost immediately raised objections to the confidential designation of these documents, claiming that the general public has a right to this information to protect future litigants. We believe this objection to be meritless. Obviously, future litigants have nothing to do with this lawsuit, and would be free to request whatever information is appropriate in their individual cases. As | have told you already, Home Depot considers its policies and procedures, and the way they are organized, to be trade secrets. Home Depot does not want its proprietary information shared with its competitors, including Lowes, etc. The policies and procedures, standard operating procedures, store readiness checklist and the other documents that were produced are the result of years of work product and effort, and reflect the private and proprietary outline for how Home Depot runs its business. Home Depot believes this information gives them a competitive advantage over its competitors, and that it would be harmed by allowing this information to be given to its competitors. This was the basis for our agreement to stipulate to a protective order and confidentiality agreement in the first place. | have asked you to provide some rationale of how your case will be negatively impacted by keeping this information confidential. You have provided nothing on this subject. | again invite you to provide me with this information. If you will not withdraw your objections, we will be forced to file a motion to keep these materials confidential, and will also seek sanctions for the time and expense associated with that effort. Please provide me with your final position on this issue by the end of the day today. Thank you, Robert From: Ying Xu [mailto:ying@ericchenlaw.com] Sent: Thursday, October 10, 2019 10:42 AM To: Robert Fisher Subject: Re: Alex Ai—Designation Objection Mr. Fisher, I'll be happy to withdraw our objections if Home Depot produces clear and convincing evidence that certain specific quantifiable harm would necessarily result from the disclosure of their commonsense safety guidelines. Freedom of information is an important American value, I'm sure you know that better than folks from elsewhere like my client and myself. Thank you for understanding. Have a good day, Ying Ying Xu, Attorney at Law Law Offices of Eric K Chen 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tel: 626.810.6163 Fax: 626.810.3732 21, message is intended only for the use of the mdividual or entity to which it 1s addressed, and may contain information that is privileged. confidential and exempt from disclosure under applicable law. 11 the reader of this message is not the intended recipient. or the emplovee or agent responsible for delivering the message (0 the intended recipient. you are hereby notified that any dissemination. distribution or copying of this communication is strictly prohibited. If you have received this communication in error. please notify us immediately by telephone. Thank you. On Thu, Oct 10, 2019 at 9:17 AM Robert Fisher wrote: Ms. Xu, As a final attempt to meet and confer before we file our motion, | wanted to check to see if you would agree to withdraw your objections. Please advise, Robert From: Robert Fisher [mailto:Robert.Fisher@knchlaw.com] Sent: Tuesday, October 08, 2019 2:00 PM To: Ying Xu' Cc: 'Greg Koeller Subject: RE: Alex Ai—Designation Objection Ms. Xu, We are not concealing anything or blocking disclosure of anything to you or your client in this lawsuit, We have produced the documents you requested. However, the information contained in the SOP’s and the Store Readiness checklist, etc. are the culmination of years of work, time, experience etc. and they most certainly are trade secrets. The purpose of the confidentiality agreement was to allow the information to be produced for you and your client’s use in this lawsuit, and to protect the information from being disseminated to our competitors and other third parties who have no right to this information and/or the way it is organized and used by Home Depot. Disclosure of this information to our competitors would allow them to have the product of Home Depot's work product and Home Depot does not want to give away its trade secrets and the information concerning how they run their business to its competitors. Moreover, what is the appreciable harm to your client in this case if the information remains confidential to our competitors and other third parties? There is none. Once again, we ask that you reconsider your position, and withdraw your objections. Sincerely, Robert From: Ying Xu [mailto:ying@ericchenlaw.com] Sent: Tuesday, October 08, 2019 1:43 PM To: Robert Fisher Subject: Re: Alex Ai—Designation Objection Mr. Fisher, you kept saying our "only" bases for objecting are this and that, making it sound like as though Home Depot is entitled to concealment of information as a matter of right. The truth is, the law favors liberal discovery and free flow of information, and the burden is always on the party seeking to block disclosure to show good cause. 1 am interested in knowing what specific and quantifiable harm Home Depot is going to suffer if those common sense safety guideline and checklist is "leaked" to the general public or to Home Depot's "competitors". I am sure all companies in the same business already have their own rules and guidelines which are based on the same common sense and conventional wisdom. Thank you for your time. Ying Xu, Attorney at Law Law Offices of Eric K Chen 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tel: 626.810.6163 Fax: 626.810.3732 #1 his message is intended only for the use of the individual or entity to which it is addressed. and may contain information that is privileged. confidential und exempt from disclosure under applicable law. 11 the reader of this message 1s not the intended recipient, or the employee or agent responsible for delivering the message to the mtended recipient. you are hereby notified that any dissemination. distribution or copying of this communication 1s strictly prolubited. H vou have received this communication in error, please notify us immediately by telephone. Thank you. On Tue, Oct 8, 2019 at 6:40 AM Robert Fisher wrote: Ms Ying, I take it from your response that you are unwilling to withdraw your objection to our designation of these materials as confidential. Your only basis for the objection is that you generally believe these materials are not trade secret or otherwise deserving of confidentiality. We obviously disagree. Given that you are free to use these materials in this case, we see no downside to your case in keeping these materials confidential. Your rationale that these materials may be used in other cases against Home Depot is not relevant to this case, and is concerning to an improper motive for this objection. We again request that you withdraw your objection so we can focus on the real issues in this case, and avoid unnecessary law and motion practice. Sincerely, Robert On Oct 7, 2019, at 8:54 PM, Ying Xu wrote: Dear Mr. Fisher, thank you for your prompt response to our Designation Objection. I have carefully reviewed the safety rules, guidelines, and other materials that Home Depot has produced pertaining to its safety standards, and nothing seems to be more than conventional guidelines that do not amount to trade secret or otherwise deserve confidentiality protection. About the "real motivation" language, I have to confess it is not my original work. I copied it word for word from a published case where the court made the observation about Home Depot's attempt seal similar documents. This matter has been before many courts. Home Depot makes the same exact argument each and every time, and courts are growing tired of it. There is no specific quantifiable harm that could possibly result from disclosing these materials to the public, which is why more and more courts are seeing right through it. I hope we don't have to go to court on this issue but if Home Depot insists, I will be there, Have a good night, Ying Xu, Attorney at Law Law Offices of Eric K Chen 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tel: 626.810.6163 Fax: 626.810.3732 This message is intended only for the use of the individual or entity to which it is addressed. and may contain information that is privileged. confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that anv dissemination. distribution or copying of this communication is strictly prohibited. If vou have received this communication in error. please notify us immediately by telephone. Thank you. On Mon, Oct 7, 2019 at 3:46 PM Robert Fisher wrote: Counsel — Please let this email correspondence serve as Defendants’ attempt to meet and confer re: Plaintiff's objections to the Confidentiality Designation Agreement (Objections sent on 10/07/19). The Agreement clearly provides that Plaintiff can use the produced documents for the purposes of the subject litigation. Your objection to the confidentiality designation for these documents rests solely on your improper and baseless assertion that these documents should not be deemed confidential in order to allow for the dissemination of this information to “future claimants” with regard to injury incidents in Home Depot's stores. This is clearly not a proper reason to remove the confidentiality designation for these documents, and your objection amounts to nothing more than “harassment, annoyance and an undue burden” by now requiring Home Depot to file a motion to protect the confidentially of these documents after we just agreed to a protective order keeping these documents confidential. The documents at issue are in fact proprietary to Home Depot and should remain confidential. The release of these documents to the public would allow for the improper disclosure of this information to third-party competitors, such as Lowes, and other unauthorized individuals. The purpose of the Confidentiality Designation Agreement is to protect Home Depot's trade secrets, and proprietary and confidential documents and information as well as the confidential and private information of third parties. We note that you did not object to the confidentiality designation given to the documents involving your client. Thus, Defendants respectfully request that you immediately withdraw your objections to the Confidentiality Agreement with respect to these documents. We hope to resolve this matter amicably and without court intervention. However, if Plaintiff refuses to withdraw his objections, Defendants will be forced to file a Motion for Protective Order to have Home Depot’s Produced Documents retain their “Confidential” Designation. We will also seek monetary sanctions pursuant to CCP Section 2031.060(h) if we are forced to file this motion. I am free to discuss the issue further either by email or by telephone: 949-864-3400. Sincerely, Robert Fisher From: Ying Xu [mailto:ying@ericchenlaw.com] Sent: Monday, October 07, 2019 11:23 AM To: Robert Fisher; laoffice@ericchenlaw.com Subject: Designation Objection Dear Mr. Fisher, attached please find Plaintiff's written objection to Home Depot's confidentiality designation and specific reasons for the objections as required in the Stipulation, Thank you. Ying Xu, Attorney at Law Law Offices of Eric K Chen 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tel: 626.810.6163 10 Fax: 626.810.3732 31 his message 1s intended only for the use of the individual or entity to which it is addressed. and may contain information that is privileged. confidential and exempt from disclosure under applicable law. Ii the reader of this message is not the intended recipient. or the employee or agent responsible for delivering the message to the intended recipient. you are hereby notified that any dissemination. distribution or copying of this communication is strictly prohibited. If vou have received this communication in error. please notify us immediately by telephone. Thank you. 11 EXHIBIT D EXHIBIT D Defense Counsel’s Billing Records ATTORNEY TASK # OF HOURS BILLING RATE TOTAL FEES Meet and Confer with Plaintiff's Counsel in effort to seek informal solution 0.8 $225 (Robert Fisher) $180 Draft Motion for Protective Order and Monetary Sanctions 3.2 $175 (Greg Koeller) $560 Expected Costs for Reviewing Plaintiff’s Opposition and Drafting Reply Papers 3.0 $225 (Robert Fisher) $675 Expected Costs for Preparing for Oral Argument and Attending Hearing (travel from Irvine, CA to Los Angeles, CA) 5.0 $225 (Robert Fisher) $1,125 Filing Fee for Motion $60 TOTAL $2,600 No Oo XX 3 O N nh A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 881.009:376795v1 PROOF OF SERVICE Alex Ai v. Home Depot U.S.A., Inc.; et al. LASC Case No. BC658381 I am over the age of eighteen years and not a party to the within action. I am employed by Koeller, Nebeker, Carlson & Haluck, LLP, whose business address is: 3 Park Plaza, Suite 1500, Irvine, California 92614-8558 (“the firm”). On October 21, 2019, I served the within document(s) described as: DEFENDANT HOME DEPOT USA, INC’’S MOTION TO HAVE HOME DEPOT’S PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION PURSUANT TO STIPULATION AND PROTECTIVE ORDER; REQUEST FOR MONETARY SANCTIONS; DECLARATION OF ROBERT A. FISHER on the interested parties in this action by placing true copy(ies) thereof enclosed in sealed envelope(s) addressed as follows: Ying Xu, Esq. Attorneys for Plaintiff, Samantha Larsen, Esq. ALEX Al Kaleigh Ragon, Esq. LAW OFFICES OF ERIC K. CHEN 18725 E. Gale Avenue, Suite 228 City of Industry, CA 91748 Tele: 626-810-6163 Fax: 626-810-3732 ying(@ericchenlaw.com Samantha@ericchenlaw.com BY MAIL (Code Civ. Proc. §§ 1013a(3))-I deposited such envelope(s) for processing in the mail room in our offices. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California, in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 21, 2019, at Irvin ifornia. hy (lhe JEN € 14 DEFENDANT’S MOTION TO HAVE PRODUCED DOCUMENTS RETAIN “CONFIDENTIAL” DESIGNATION ¢..~3 Journal Technologies Court Portal Make a Reservation ALEX Al VS HOME DEPOT USA INC Case Number: BC658381 Case Type: Civil Unlimited Category: Premises Liability (e.g.slip & fall) Date Filed: 2017-05-16 Location: Spring Street Courthouse - Department 4A Reservation Case Name: ALEX AVS HOME DEPOT USA INC Type: Motion re: (Motion to Have Home Depot's Produced Documents Retain "Confidential" Designation Pursuant to Stipulation and Protective Order; Request for Monetary Sanctions) Filing Party: Home Depot US.A,, Inc. (Defendant) Date/Time: 11/21/2019 1:30 PM Reservation ID: 799907453247 Fees Description Motion re: (name extension) Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $61.65 Account Number: XXXX8910 Case Number: BC658381 Status: RESERVED Location: Spring Street Courthouse - Department 4A Number of Motions: 1 Confirmation Code: CR-SZSYJ5LQ2XSUU4TVK Fee Qty 60.00 i 1.65 1 Type: Visa Authorization: 017999 = Print Receipt <= Reserve Another Hearing A View My Reservations Copyright © Journal Technologies, USA. All rights reserved. Amount 60.00 1.65 $61.65
