Axer v. Sam's West, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
CHRIS AXER,
Plaintiff,
vs.
SAM’S WEST, INC. D/B/A SAM’S
CLUB AND SAM’S EAST, INC. D/B/A
SAM’S CLUB,
Defendants.
Case No. 2:25-cv-10439-DPH-APP
Judge: Denise Page Hood
Mag. Judge: Anthony P. Patti
Darice E. Weber (P52084)
dweber@secrestwardle.com
pwinger@secrestwardle.com
SECREST WARDLE
2600 Troy Center Drive
P.O. Box 5025
Troy, Michigan 48007-5025
Telephone: 	248.851.9500
Attorneys for Plaintiff
Scott A. Forman (0065950)
sforman@littler.com
LITTLER MENDELSON, P.C.
Wells Fargo Center, 333 SE 2nd Avenue
Suite 2700
Miami, Florida 33131
Telephone: 	305.400.7500
Facsimile: 	305.675.8497
Jaclyn R. Giffen (P75316)
jgiffen@littler.com
Ashley E. Monticciolo (P83378)
amonticciolo@littler.com
LITTLER MENDELSON, P.C.
500 Woodward Ave., Suite 2600
Detroit, Michigan 48226
Telephone: 	313.446.6400
Facsimile: 	313.446.6405
Attorneys for Defendants SAM’S WEST,
INC. d/b/a SAM’S CLUB and SAM’S
EAST, INC. d/b/a SAM’S CLUB
PROTECTIVE ORDER
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This case has been referred to me for pretrial matters, excluding dispositive
motions. 	(ECF No. 16.) 	On September 11, 2025, Defendants filed a motion for
entry of protective order (ECF No. 15), which the Court granted as unopposed on
September 26, 2025 by text-only order. Accordingly, the Court enters the following
Protective Order:
1. 	This Order shall govern the disclosure of materials designated as
Confidential Material in this litigation. Confidential Material, as used in this Order,
shall 	refer 	to 	any 	document 	or 	item 	designated 	as 	Confidential 	or 	Highly
Confidential – Attorneys’ Eyes Only, including but not limited to, documents or
items produced during discovery, 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:
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, investigation materials, 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;
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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, if unsuccessful, shall move
the Court for appropriate relief.
The parties shall not designate as confidential information that is already public
knowledge.
3. 	Such Confidential Material as described in paragraph 2 should be
given the protection of an order of this Court to prevent injury through disclosure to
persons other than those persons involved in the prosecution or defense of this
litigation.
Procedure for Designating Information as Confidential
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4. 	To designate information as confidential, the producing party shall
mark Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL 	– 	ATTORNEYS’ 	EYES 	ONLY.” 	Parties 	shall 	submit
confidential discovery responses, such as answers to interrogatories or answers to
requests for admissions, in a separate document stamped with the appropriate legend
designating those responses as Confidential Material. 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.
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.
b. 	Information disclosed at any deposition of a party taken in
this action may be designated by the party as confidential
by indicating on the record at the deposition that the
information is confidential and subject to the provisions of
this 	Order. 	Alternatively, 	the 	party 	may 	designate
information disclosed at the deposition as confidential by
notifying the court reporter and other parties in writing,
within 	fifteen 	(15) 	business 	days 	of 	receipt 	of 	the
transcript, of the specific pages and lines of the transcript
which are designated as confidential. The parties may
agree to a reasonable extension of the 15-business-day
period for designation. Designations of transcripts will
apply to audio, video, or other recordings of the testimony.
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During such 15-business-day period, the entire transcript
shall 	receive 	confidential 	treatment. 	Upon 	such
designation, the court reporter and each party shall affix
the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” legend to the designated
pages and segregate them as appropriate.
5. 	A producing party may change the confidentiality designation of
materials it has produced, as follows: (1) The producing party must give the receiving
parties notice of the change by identifying the documents or information at issue.
Once notice is given, the receiving party must make good-faith efforts to ensure that
the documents or information are accorded treatment under the new designation. (2)
Within a reasonable period after giving notice, the producing party must reproduce
the documents or information in a format that contains the new designation. 	(3) If
such 	information 	has 	been 	disclosed 	to 	persons 	not 	qualified 	pursuant 	to
paragraph(s) 12-13 below, the party who disclosed such information shall (a) take
reasonable efforts to retrieve previously disclosed Confidential Material; (b) advise
such persons that the material is Confidential; and (c) give the producing party
written assurance that steps (a) and (b) have been completed.
Data Security
6. 	The Parties shall provide adequate security to protect data produced
by the other party(ies) or by non-parties. This includes secure data storage systems,
established security policies, and security training for employees, contractors and
experts. Adequate security also includes such measures as data encryption in transit,
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data encryption 	at rest, data access 	controls, and 	physical security, whether
hosted/outsourced to a vendor or on premises. At a minimum, any receiving party
subject to the terms of this Protective Order, will provide reasonable measures to
protect non-client data consistent with the American Bar Association Standing
Committee on Ethics and Professional Responsibility, Formal Opinion 477R.
Clawback Provisions
7. 	The production of privileged or work-product protected documents,
electronically stored information (ESI) or information, whether inadvertent or
otherwise, is not a waiver of the privilege or protection from discovery in this case
or in any other federal or state proceeding.
8. 	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.
9. 	Nothing contained herein is intended to or shall serve to limit a
party’s right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
10. 	If the receiving party has reason to believe that a produced document
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or other information may reasonably be subject to a claim of privilege, then the
receiving party shall immediately sequester the document or information, cease
using the document or information and cease using any work product containing the
information, and shall inform the producing party of the beginning BATES number
of the document or, if no BATES number is available, shall otherwise inform the
producing party of the information.
11. 	A producing party must give written notice to any receiving party
asserting a claim 	of privilege, work-product protection, or other ground for
reclaiming documents or information (a “clawback request”). 	After a clawback
request is received, the receiving party shall immediately sequester the document (if
not already sequestered) and shall not review or use that document, or any work
product containing information taken from that document, for any purpose. 	The
parties shall meet and confer regarding any clawback request.
Who May Receive Confidential and Highly Confidential Information
12. 	Confidential 	Material. 	Any 	Confidential 	Material 	and 	the
information contained therein shall be disclosed only to the Court, its staff, in-house
counsel and outside counsel of record for each party, mediators, 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 and trial of this action, and any witnesses in the case (including
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consulting and testifying experts) as may from time to time reasonably be necessary
in prosecution or defense of this action.
13. 	Highly Confidential—Attorneys’ Eyes Only Material. Material and
information designated as “Highly Confidential—Attorneys’ Eyes Only” shall only
be disclosed to the Court, its staff, in-house and outside counsel of record for each
party, the secretarial, clerical, and paralegal staff of each, and consulting and
testifying experts retained by a party in this action.
14. 	Restriction on Disclosure to Direct Competitors. 	Notwithstanding
the foregoing, Confidential Material shall not be disclosed to any current or former
employees of, or current or former consultants, advisors, or agents of, a direct
competitor of any party named in the litigation. If a Receiving Party is in doubt about
whether a particular entity is a direct competitor of a party named in this lawsuit,
then before disclosing any Confidential Material to a current or former employee,
consultant, advisor, or agent of that entity, the Receiving Party’s counsel must confer
with counsel for the Producing Party.
15. 	Persons Receiving Confidential Information Must Sign Exhibit A.
Counsel for each party shall advise all persons to whom Confidential Material is
disclosed pursuant to this Order of the existence of this Order and shall provide all
such persons (other than the Court and its staff) with a copy of this Order. Counsel
shall also require such persons to execute the Affidavit attached as Exhibit A, prior
to the disclosure of Confidential Material.
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16. 	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 in order to permit the producing party to
understand and take appropriate steps. 	Each party and its counsel shall take
reasonable 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. This provision does not limit
the producing party’s entitlement to damages resulting from any breach of this Order.
Authorized Uses of Confidential Material
17. 	Confidential Material shall only be used for the purpose of litigating
the above-captioned lawsuit and may not be used in other lawsuits.
18. 	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 litigation.
19. 	If any person having access to the Confidential Material herein shall
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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.
Challenges to the Designation of Confidential Material
20. 	Any party or interested member of the public may move the Court to
modify the designation of any documents or information produced in this litigation
(either to include additional protection with respect to confidentiality or to remove a
confidential designation). Before making such a motion, the party or an interested
member of the public shall first attempt to resolve such dispute with the producing
party’s counsel. 	Pending resolution of any challenges to the designation of
documents or information, the material at issue shall continue to be treated as
Confidential Material until ordered otherwise by the Court. The burden shall be on
the party seeking to modify the designation to show that the producing party’s
designation is inappropriate.
Withholding of Information
21. 	Non-relevant Attachments. The parties will not produce non-relevant
attachments that are attached to relevant emails. When an attachment is withheld,
either for privilege or non- responsiveness, the producing party shall produce a one-
page TIFF image (or PDF if production format dictates) in place of the withheld
attachment, 	correspondingly 	stating 	“Attachment 	Withheld-Privileged” 	or
“Attachment Withheld-Nonresponsive,” and bearing a sequential BATES number
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within the family BATES range. If any attachment to an email contains responsive
content, then the cover email shall be produced for context, regardless of the cover
email’s responsiveness. The cover email may be redacted in part to remove sensitive
information, as described below.
22. 	Redactions. The parties may redact (1) information that is privileged
or protected from discovery as work product or by reason of any other applicable
privilege 	or 	immunity; 	(2) 	information 	subject 	to 	non-disclosure 	obligations
imposed by governmental authorities, law or regulation (e.g., protected personal
information); and (3) sensitive, non-relevant information, including but not limited
to personally identifiable information, trade secrets, or information regarding
products, data, or people. Redactions of emails will not redact the names of recipients
or the subject line of the emails, unless the subject line is itself privileged or contains
the sensitive information described above, in which case only so much of the subject
line will be redacted as may be needed. The parties will produce redacted documents
in TIFF format (or searchable PDF if production format dictates; or in native format
for file types that do not convert well to TIFF/PDF, such as Excel files) with
corresponding searchable OCR text and the associated metadata for the document,
ensuring the redacted content is fully protected from disclosure.
Confidential Material In Filings, Hearings, and Trial
23. 	Confidential Material in Filings. 	Without written permission from
the Producing Party or court order secured after appropriate notice to all interested
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persons, a party may not file Confidential Material 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 Local Rule 5.3. Confidential Material may
only be filed under seal in a manner prescribed by the Court for such filings.
24. 	Manner of Sealing. In the event Confidential Materials or portions of
transcripts are sealed as confidential by the Court or as described in paragraph 23
above, they shall be filed in an envelope bearing the following designation when
deposited:
CONFIDENTIAL
IN 	ACCORDANCE 	WITH 	THE 	PROTECTIVE
ORDER OF THE COURT, THE CONTENTS OF
THIS 	ENVELOPE 	SHALL 	BE 	TREATED 	AS
CONFIDENTIAL AND MUST NOT BE SHOWN TO
A 	PERSON 	OTHER 	THAN 	THE 	COURT,
ATTORNEYS IN THIS CASE, OR TO PERSONS
ASSISTING THOSE ATTORNEYS.
25. 	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. 	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
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Material.
Continuing Effect of this Order and Duty to Destroy
26. 	This Order 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. 	This requirement to destroy includes all
documents, not only those documents designated as Confidential Material. 	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,
including any copies of Confidential Materials provided to persons required to
execute Exhibit A (Affidavit), 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.
Procedure if Confidential Material Is Required to be Produced
27. 	If any person receiving documents covered by this Order is served
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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 non-
party 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.
Application of this Order to Productions by Third Parties
28. 	This Order may be used by third parties producing documents in
connection with this action. Third parties may designate information as Confidential
or Highly Confidential – Attorneys’ Eyes Only.
29. 	If a third party produces (or intends to produce) documents and does
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not designate (or does not intend to designate) those documents as Confidential
Material, then any party to this action may seek to designate that third party’s
documents or categories of documents as Confidential Material. In that case, it will
be the burden of the party seeking protected status to move for a court order
designating the materials as Confidential Material after the parties confer.
30. 	In the event additional parties join or intervene in this litigation, the
newly joined party(ies) shall not have access to Confidential Material until its/their
counsel has executed and, at the request of any party, filed with the Court the
agreement of such party(ies) and such counsel to be fully bound by this Order.
31. 	Nothing in this Order shall be deemed to limit the extent to which
counsel for the parties may advise or represent their respective clients, conduct
discovery, prepare for trial, present proof at trial, including any document designated
Confidential Material as set forth herein, or oppose the production or admissibility
of any information or documents which have been requested.
32. 	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
Dated: October 20, 2025
Anthony P. Patti
United States Magistrate Judge
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EXHIBIT A TO PROTECTIVE ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
CHRIS AXER,
Plaintiff,
vs.
SAM’S WEST, INC. D/B/A SAM’S
CLUB AND SAM’S EAST, INC. D/B/A
SAM’S CLUB,
Defendants.
Case No. 2:25-cv-10439-DPH-APP
Judge: Denise Page Hood
Mag. Judge: Anthony P. Patti
Darice E. Weber (P52084)
dweber@secrestwardle.com
pwinger@secrestwardle.com
SECREST WARDLE
2600 Troy Center Drive
P.O. Box 5025
Troy, Michigan 48007-5025
Telephone: 	248.851.9500
Attorneys for Plaintiff
Scott A. Forman (0065950)
sforman@littler.com
LITTLER MENDELSON, P.C.
Wells Fargo Center, 333 SE 2nd Ave.
Suite 2700
Miami, Florida 33131
Telephone: 	305.400.7500
Facsimile: 	305.675.8497
Jaclyn R. Giffen (P75316)
jgiffen@littler.com
Ashley E. Monticciolo (P83378)
amonticciolo@littler.com
LITTLER MENDELSON, P.C.
500 Woodward Ave., Suite 2600
Detroit, Michigan 48226
Telephone: 	313.446.6400
Facsimile: 	313.446.6405
Attorneys for Defendants SAM’S WEST, INC.
d/b/a SAM’S CLUB and SAM’S EAST, INC.
d/b/a SAM’S CLUB
AFFIDAVIT OF COMPLIANCE WITH PROTECTIVE ORDER
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1. 	My name is . I live at 	. I am working on behalf (or at the direction
and engagement) of 	.
2. 	I am aware that a Protective Order has been entered in the above-
captioned lawsuit. A copy of this Protective Order has been given to me, and I have
read and understand the provisions of same.
3. 	I 	acknowledge 	that 	documents 	and 	information 	designated 	as
confidential 	and/or 	highly 	confidential 	pursuant 	to 	such 	Protective 	Order
(“Confidential Materials”) are being disclosed to me only upon the conditions that I
agree (a) to be subject to the jurisdiction of this Court, and (b) to comply with that
Order. I hereby agree to abide by such Order, subject to all penalties prescribed
therein, including contempt of Court, for disobedience of said Order. I promise that
the documents and information given confidential treatment under the Protective
Order entered in this case will be used by me only to assist counsel for the parties in
preparing for litigation of the above- captioned matter. I understand that any use of
such Confidential Material in any manner contrary to the provisions of the Protective
Order may subject me to the sanctions of this Court for contempt and to liability for
any damages caused by my breach of the Protective Order.
4. 	I 	shall 	not 	disclose 	nor 	permit 	to 	be 	reviewed 	or 	copied 	said
Confidential Materials, or any information derived from, by any person other than
the parties and counsel for the parties or members of their staff.
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5. 	Within 30 days after the above-captioned lawsuit ends in a final non-
appealable order, I agree to destroy all Confidential Materials in my possession.
DATED: 	, 20
Signature
Printed Name
Page 2
Exhibit A, Affidavit of Compliance with Protective Order
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