Denis Gobeille v. United Parcel Service of America Inc et al

Filing 37

ORDER GRANTING REVISED JOINT STIPULATION FOR A PROTECTIVE ORDER by Magistrate Judge Ralph Zarefsky. Re Stipulation for Protective Order 36 . (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DENIS GOBEILLE,

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Plaintiff,

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v.
UPS CARTAGE SERVICES, INC., a
Delaware corporation, and DOES 1-10,
inclusive,
Defendants.

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Case No. 13-cv-02346-JFW (RZx)
[PROPOSED] ORDER
GRANTING REVISED JOINT
STIPULATION FOR
PROTECTIVE ORDER
Magistrate Judge: Hon. Ralph Zarefsky
Courtroom:
540
Complaint Filed: December 21, 2012
Trial Date:
February 4, 2014
[DISCOVERY MATTER]

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Pursuant to the Revised Joint Stipulation for a Protective Order submitted by

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Defendant UPS CARTAGE SERVICES, INC. (“Defendant”) and Plaintiff

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DENIS GOBEILLE (“Plaintiff”), the Court finds good cause exists for a Protective

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Order in this case based on the following relevant facts:

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1.

In 2007, Congress passed the Implementing Recommendations of the

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9/11 Commission Act more commonly known as the 9/11 Act. This law requires that

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all cargo transported on a passenger aircraft be screened for explosives as of August 1,

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2010. The Transportation Security Administration (TSA) developed the Certified

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Cargo Screening Program as a solution to help the industry reach the 100 percent
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
PROTECTIVE ORDER

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screening mandate. The program enables freight forwarders and shippers like

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Defendant to pre-screen cargo prior to arrival at the airport. Given the highly

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confidential nature of this program, and the concern that passenger cargo flights may

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be put in jeopardy if such information is disclosed to the public domain, federal law

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prohibits the disclosure of any “Sensitive Security Information” as defined by statute.

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See 49 CFR 15.1, et seq. 29 C.F.R. 1520, et seq.

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2.

Defendant operates a Certified Cargo Screening Program at its facility in

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Inglewood, California. Plaintiff was employed by Defendant as a Senior

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Supervisor/Facility Services Coordinator at this facility. In this capacity, Plaintiff was

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responsible for ensuring that cargo was properly screened in accordance with the

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regulations promulgated by the TSA and in accordance with UPS’ internal policies

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and procedures.

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3.

One of Plaintiff’s claims is that he was retaliated against for complaining

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about perceived violations of the TSA regulations. Defendant maintains that Plaintiff

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was terminated for violating its policies and procedures relating to its Certified Cargo

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Screening Program. As such, Defendant’s internal policies and procedures pertaining

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to the TSA regulations are directly relevant to this case.

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4.

While Defendant is precluded by law from disclosing “Sensitive Security

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Information” as defined by statute, 49 CFR 15.1, et seq. 29 C.F.R. 1520, et seq., the

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parties have agreed to exchange information that relates to Defendant’s internal

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policies and procedures pertaining to the screening and handling of cargo for

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international and domestic passenger flights. While not technically “Sensitive

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Security Information” as defined by statute, such information does reveal UPS’

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operations for screening cargo prior to tendering it to the airline for movement on a

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passenger flight. If such procedures are disclosed to the public, the integrity of

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Defendant’s Certified Cargo Screening Program would be in jeopardy. Even worse, if

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this information got into the wrong hands, i.e. a terrorist organization, the public itself

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could be in danger. As such, good cause exists. See Foltz v. State Farm Mut. Auto.
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003) [“The common law right of access . . . is

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not absolute and can be overridden given sufficiently compelling reasons for doing

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so."].

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NOW THEREFORE, this Court approves and enters a Protective Order in this
case, with the terms and provisions set forth below:
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Any party to this litigation shall have the right to designate as

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“Confidential” and subject to this Order any information, document, or thing, or

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portion of any document or thing which the designating party otherwise believes in

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good faith contains information pertaining to Defendant’s Certified Cargo Screening

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Program not otherwise prohibited from disclosure under 29 C.F.R. 1520, et seq. Any

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party to this litigation who produces or discloses any Confidential Material, including

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without limitation any information, document, thing, interrogatory answer, admission,

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pleading, or testimony, shall mark the same with the foregoing or similar legend:

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“CONFIDENTIAL” or “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”

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(hereinafter “Confidential Material”).

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Any party to this litigation that designates information, documents, items

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or oral or written communications for protection under this Order must take care to

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limit any such designation to specific material that qualifies under the appropriate

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standards. To the extent it is practical to do so, the designating party must designate

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for protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order. If it comes to a designating party’s

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attention that information or items that it designated for protection do not qualify for

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protection at all or do not qualify for the level of protection initially asserted, that

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designating party must promptly notify all other parties that it is withdrawing the

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mistaken designation.

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7.

All Confidential Material shall be used by the receiving party solely for
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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purposes of the prosecution or defense of this action, shall not be used by the

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receiving party for any business, commercial, competitive, personal or other purpose,

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and shall not be disclosed by the receiving party to anyone other than those set forth in

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Paragraph 5, unless and until the restrictions herein are removed either by written

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agreement of counsel for the parties, or by Order of the Court.

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8.

Unless otherwise ordered by the court or permitted in writing by the

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designating party, a receiving party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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a.

Counsel for the parties, including outside counsel (herein defined

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as any attorney at the parties’ outside law firms) and relevant in-house counsel for the

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parties, as well as employees of all such Counsel to whom it is reasonably necessary

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to disclose the information for this litigation;

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b.

Experts or consultants of the receiving party to whom disclosure is

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reasonably necessary for this litigation, provided they have signed a non-disclosure

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agreement in the form attached hereto as Exhibit A;

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c.

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personnel of the foregoing;

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d.

The Court and its personnel;

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e.

Any deponent may be shown or examined on any information,

Secretarial, paralegal, clerical, duplicating and data processing

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document or thing designated Confidential if it appears that the witness authored or

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received a copy of it, was involved in the subject matter described therein or if the

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designating party consents in writing to such disclosure;

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f.

The author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;
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Vendors retained by or for the parties to assist in preparing for

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pretrial discovery, trial and/or hearings including, but not limited to, court reporters,

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litigation support personnel, jury consultants, individuals to prepare demonstrative and

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audiovisual aids for use in the courtroom or in depositions or mock jury sessions, as
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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well as their staff, stenographic, and clerical employees whose duties and

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responsibilities require access to such materials; and
h.

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The parties. In the case of parties that are corporations or other

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business entities, “party” shall mean executives who are required to participate in

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decisions with reference to this lawsuit.

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9.

Confidential Material shall be used only by individuals permitted access

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to it under Paragraph 8. Such Confidential Material, copies thereof, and the

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information contained therein, shall not be disclosed in any manner to any other

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individual, until and unless (a) counsel for the party asserting confidentiality waives

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the claim of confidentiality, or (b) the Court orders such disclosure.
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With respect to any depositions that involve a disclosure of Confidential

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Material of a party to this action, such party shall have until thirty (30) days after

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receipt of the deposition transcript within which to inform all other parties that

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portions of the transcript are to be designated Confidential, which period may be

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extended by agreement of the parties. No such deposition transcript shall be disclosed

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to any individual other than the individuals described in Paragraph 8above and the

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deponent during these thirty (30) days, and no individual attending such a deposition

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shall disclose the contents of the deposition to any individual other than those

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described in Paragraph 8 above during said thirty (30) days. Upon being informed

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that certain portions of a deposition are to be designated as Confidential, all parties

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shall immediately cause each copy of the transcript in its custody or control to be

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appropriately marked and limit disclosure of that transcript in accordance with

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Paragraphs 8 and 9.

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If counsel for a party receiving documents or information designated as

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Confidential Material hereunder objects to such designation of any or all of such

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items, the following procedure shall apply:

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a.

Counsel for the objecting party shall serve on the designating party

a written objection to such designation, which shall identify the documents or
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
PROTECTIVE ORDER

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information in question. Counsel for the designating party shall respond in writing to

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such objection within ten (10) days, and shall state with particularity the grounds for

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asserting that the document or information is Confidential. If no timely written

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response is made to the objection, the challenged designation will be deemed to be

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void. If the designating party or nonparty makes a timely response to such objection

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asserting the propriety of the designation, counsel shall then confer in good faith in an

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effort to resolve the dispute.

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b.

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If a dispute as to a Confidential designation of a document or item

of information cannot be resolved by agreement, the proponent of the designation

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being challenged shall present the dispute to the Magistrate Judge within 14 days of

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the parties reaching an impasse. The document or information that is the subject of

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the filing shall be treated as originally designated pending resolution of the dispute.
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If a party wishes to file a document that has been designated as

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Confidential by another party, the submitting party must give the designating party

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five calendar days written notice of its intent to file. If the designating party objects, it

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should notify the submitting party and file an application to file documents under seal

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within two court days after receiving notice from the submitting party of its intent to

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file.

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13.

In the event a party wishes to have documents filed under seal, that party

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shall seek an order from the Court granting permission to file said material under seal

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in accordance with United States District Court, Central District of California Local

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Rule 79-5 and the Judge’s Standing Order. Subject to public policy and further court

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order, nothing shall be filed under seal, and the court shall not be required to take any

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action, without separate prior order by the Judge before whom the hearing or

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proceeding will take place, after application by the affected party with appropriate

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notice to opposing counsel. If the Court grants a party permission to file an item

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under seal, a duplicate disclosing all non-confidential information shall be filed and

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made part of the public record. The item may be redacted to eliminate confidential
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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material from the document. The document shall be titled to show that it corresponds

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to an item filed under seal, e.g., “Redacted Copy of Sealed Declaration of John Smith

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in Support of Motion for Summary Judgment.” The sealed and redacted documents

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shall be filed simultaneously.

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If the need arises during trial or at any hearing before the Court for any

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party to disclose Confidential, it may do so only after giving notice to the designating

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party and as directed by the Court.

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15.

To the extent consistent with applicable law, the inadvertent or

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unintentional disclosure of Confidential Material that should have been designated as

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such, regardless of whether the information, document or thing was so designated at

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the time of disclosure, shall not be deemed a waiver in whole or in part of a party’s

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claim of confidentiality, either as to the specific information, document or thing

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disclosed or as to any other material or information concerning the same or related

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subject matter. Such inadvertent or unintentional disclosure may be rectified by

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notifying in writing counsel for all parties to whom the material was disclosed that the

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material should have been designated Confidential within a reasonable time after

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disclosure. Such notice shall constitute a designation of the information, document or

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thing as Confidential Material under this Order.

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When the inadvertent or mistaken disclosure of any information,

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document or thing protected by privilege or work-product immunity is discovered by

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the designating party and brought to the attention of the receiving party, the receiving

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party’s treatment of such material shall be in accordance with Federal Rule of Civil

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Procedure 26(b)(5)(B). Such inadvertent or mistaken disclosure of such information,

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document or thing shall not by itself constitute a waiver by the designating party of

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any claims of privilege or work-product immunity. However, nothing herein restricts

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the right of the receiving party to challenge the designating party’s claim of privilege

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if appropriate within a reasonable time after receiving notice of the inadvertent or

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mistaken disclosure.
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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No information that is in the public domain or which is already known by

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the receiving party through proper means or which is or becomes available to a party

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from a source other than the party asserting confidentiality, rightfully in possession of

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such information on a nonconfidential basis, shall be deemed or considered to be

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Confidential Material under this Order.

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This Order shall not deprive any party of its right to object to discovery

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by any other party or on any otherwise permitted ground. This Order is being entered

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without prejudice to the right of any party to move the Court for modification or for

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relief from any of its terms.

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Upon final conclusion of this litigation, including the expiration of any

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appeals thereof, each party or other individual subject to the terms hereof shall be

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under an obligation to certify, under oath, that they have either returned to opposing

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counsel or destroyed all originals and unmarked copies of documents and things

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containing Confidential Material and to destroy, should such source so request, all

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copies of Confidential Material that contain and/or constitute attorney work product as

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well as excerpts, summaries and digests revealing Confidential Material; provided,

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however, that counsel may retain complete copies of all transcripts and pleadings

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including any exhibits attached thereto for archival purposes, subject to the provisions

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of this Protective Order.

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This Order may be modified by agreement of the parties, subject to Court

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approval. In addition, the provisions of this Protective Order may be modified by this

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Court, for good cause, or in the interest of justice, or in its own order at any time in

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these proceedings. The within order and parties’ stipulation do not change, amend or

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circumvent any court rule or local rule.

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IT IS SO ORDERED.
Dated: September 23, 2013
HONORABLE RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE
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[PROPOSED] ORDER GRANTING REVISED JOINT STIPULATION FOR
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WILSON TURNER KOSMO LLP
CLAUDETTE G. WILSON (110076)
JESSICA A. CHASIN (214983)
MARISSA L. LYFTOGT (259559)
550 West C Street, Suite 1050
San Diego, California 92101
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for Defendant
UPS CARTAGE SERVICES, INC.
GIRARDI │KEESE
JOHN A. GIRARDI (54917)
1126 Wilshire Boulevard
Los Angeles, California 90017
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
DENIS GOBEILLE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DENIS GOBEILLE,

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Plaintiff,

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v.
UPS CARTAGE SERVICES, INC., a
Delaware corporation, and DOES 1-10,
inclusive,
Defendants.

Case No. 13-cv-02346-JFW (RZx)
AGREEMENT TO COMPLY WITH
PROTECTIVE ORDER
Magistrate Judge: Hon. Ralph Zarefsky
Courtroom:
540
Complaint Filed: December 21, 2012
Trial Date:
February 4, 2014
[DISCOVERY MATTER]

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Case No. 13-cv-02346-JFW (RZx)
AGREEMENT TO COMPLY WITH PROTECTIVE ORDER

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I, _____________________________________, being duly sworn, state that:
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My address is

_____________________________________________________.
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My present employer is ________________________________ and the

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address of my present employment is

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____________________________________________________.
3.

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My present occupation or job description is

________________________.
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I have carefully read and understood the provisions of the Protective

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Order in this case signed by the Court, and I will comply with all provisions of that

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order.

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5.

I will hold in confidence and not disclose to anyone not qualified under

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the Order any Confidential Material or any words, summaries, abstracts, or indices of

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Confidential Information disclosed to me.

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6.

I will limit use of Confidential Material disclosed to me solely for the

purposes of this action.
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No later than the final conclusion of the case, I will return all

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Confidential Material and summaries, abstracts, and indices thereof which come into

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my possession, and documents or things which I have prepared relating thereto, to

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counsel for the party for whom I was employed or retained.

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I declare under penalty of perjury that the foregoing is true and correct.
Dated: ______________ ____, 20___
Name:

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AGREEMENT TO COMPLY WITH PROTECTIVE ORDER