John P Chavez Sr. v. AmeriGas Propane Inc et al

Filing 26

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 22 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN P. CHAVEZ, SR., an individual,
on behalf of himself and all others
similarly situated,

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Plaintiff,
vs.

Case No. CV13-05813-MMM (MANx)

PROTECTIVE ORDER
ENTERED PURSUANT TO THE
PARTIES’ STIPULATION

AMERIGAS PROPANE, INC., a
Pennsylvania corporation; JEFF JONES,
an individual; and DOES 1 through 100,
inclusive,
Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on
the parties’ Stipulation for Entry of Protective Order (“Stipulation”) filed on
January 30, 2014, the terms of the protective order to which the parties have agreed
are adopted as a protective order of this Court (which generally shall govern the
pretrial phase of this action) except to the extent, as set forth below, that those terms
have been substantively modified by the Court’s amendment of paragraphs III, V,
VI, IX, and XII of, and Exhibit A to, the Stipulation.

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The parties are expressly cautioned that the designation of any information,
document, or thing as Confidential, or other designation(s) used by the parties, does
not, in and of itself, create any entitlement to file such information, document, or
thing, in whole or in part, under seal. Accordingly, reference to this Protective
Order or to the parties’ designation of any information, document, or thing as
Confidential, or other designation(s) used by the parties, is wholly insufficient to
warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive motions,
good cause must be shown to support a filing under seal. The parties’ mere
designation of any information, document, or thing as Confidential, or other
designation(s) used by parties, does not -- without the submission of competent
evidence, in the form of a declaration or declarations, establishing that the
material sought to be filed under seal qualifies as confidential, privileged, or
otherwise protectable -- constitute good cause.
Further, if sealing is requested in connection with a dispositive motion or
trial, then compelling reasons, as opposed to good cause, for the sealing must be
shown, and the relief sought shall be narrowly tailored to serve the specific interest
to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th
Cir. 2010). For each item or type of information, document, or thing sought to be
filed or introduced under seal in connection with a dispositive motion or trial, the
party seeking protection must articulate compelling reasons, supported by specific
facts and legal justification, for the requested sealing order. Again, competent
evidence supporting the application to file documents under seal must be
provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in
its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting
only the confidential, privileged, or otherwise protectable portions of the document,
shall be filed. Any application that seeks to file documents under seal in their
entirety should include an explanation of why redaction is not feasible.

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Notwithstanding any other provision of this Protective Order, in the event
that this case proceeds to trial, all information, documents, and things discussed or
introduced into evidence at trial will become public and available to all members of
the public, including the press, unless sufficient cause is shown in advance of trial
to proceed otherwise.

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THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND
ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE
MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE,
INCLUDING THOSE APPLICABLE TO FILINGS UNDER SEAL.
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AGREED TERMS OF PROTECTIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT

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I.

Disclosure and discovery activity in this action may involve production of
confidential, proprietary, or private information for which special protection from
public disclosure and from use for any purpose other than prosecuting this litigation
may be warranted. Accordingly, the parties have stipulated to and petitioned the
Court to enter the following Protective Order. The parties have acknowledged that
this Protective Order does not confer blanket protections on all disclosures or
responses to discovery and that the protection it affords from public disclosure and
use extends only to the limited information or items that are entitled to confidential
treatment under the applicable legal principles. The parties have further
acknowledged, as set forth in Section 12.3, below, that this Protective Order does
not entitle them to file confidential information under seal; the Central District of
California’s Local Rules, including Local Rule 79-5, set forth the procedures that
must be followed when a party seeks permission from the Court to file material
under seal.

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PURPOSES AND LIMITATIONS

II.
2.1

DEFINITIONS

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Protective Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored, or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), including, but not limited
to, the names and contact information for putative class members.
2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).

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2.4

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.6

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this action.
2.7

House Counsel: attorneys who are employees of a party to this action.

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.8

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a

party to this action but are retained to represent or advise a party to this action and
have appeared in this action on behalf of that party or are affiliated with a law firm
which has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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III.

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SCOPE

The protections conferred by this Protective Order cover not only Protected
Material (as defined above) but also: (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any deposition testimony, conversations, or presentations by
Parties or their Counsel that might reveal Protected Material. However, the
protections conferred by this Protective Order do not cover the following
information: (a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation
of this Protective Order, including becoming part of the public record through trial
or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source
who obtained the information lawfully and is under no obligation of confidentiality
to the Designating Party. Any use of Protected Material at trial shall be governed
by a separate agreement or order.
IV.

DURATION

Even after final disposition of this litigation, the confidentiality obligations
imposed by this Protective Order shall remain in effect until a Designating Party
agrees otherwise in writing or a court order otherwise directs. Final disposition
shall be deemed to be the later of: (1) dismissal of all claims and defenses in this
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action, with or without prejudice; and (2) final judgment herein after the completion
and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.

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V.
5.1

DESIGNATING PROTECTED MATERIAL

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party who or which designates information or items for
protection under this Protective Order must take care to limit any such designation
to specific material that qualifies under the appropriate standards. The Designating
Party must designate for protection only those parts of material, documents, items,
or oral or written communications that qualify – so that other portions of the
material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Protective Order.
If it comes to a Designating Party’s attention that information or items it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

this Protective Order (see, e.g., second paragraph of section 5.2(a) below), or as
otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Protective Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Protective Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions), that the Producing Party affix
the legend “CONFIDENTIAL” to each page that contains protected material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting Party
has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this
Protective Order. Then, before producing the specified documents, the Producing
Party must affix the “CONFIDENTIAL” legend to each page that contains
Protected Material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in deposition , that the Designating Party identify on
the record, before the close of the deposition, unless the Parties jointly agree on the
record to an alternative timeframe for such designations or otherwise are ordered by
the Court.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party 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 a portion or portions of the information or item
warrant protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected after discovery,

an inadvertent failure to designate qualified information or items does not, standing
alone, waive the Designating Party’s right to secure protection under this
Protective Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is treated
in accordance with the provisions of this Protective Order.
VI.
6.1

CHALLENGING CONFIDENTIALITY DESIGNATION
If any Party objects to the designation of any Protected Material as

“CONFIDENTIAL,” the Receiving Party may request in writing that the
Designating Party remove such designation. The written request shall specifically
identify the precise material or information at issue.
6.2

The Designating Party shall respond in writing within seven (7)

business days of the receipt of the written request, or within such other time as may
be designated by order of the Court or agreement of the parties. If the Designating
Party refuses to remove the “CONFIDENTIAL” designation, the Designating
Party’s written response shall state the reasons for such refusal. Notwithstanding
the foregoing, failure to provide a timely written response shall be deemed a refusal
of the request.
6.3

If the Designating Party fails to respond to a request or refuses to

remove the “CONFIDENTIAL” designation, the Receiving Party shall have twenty
(20) days from the date the objecting party received the Designating Party’s
refusal (or, in the case of failure to respond, twenty (20) days from the date such
response would have been due) to file an appropriate motion or application
challenging the designation with the Court. It shall be the burden of the
Designating Party to establish that the designated information is
“CONFIDENTIAL” within the meaning of this Protective Order or otherwise
should be subject thereto. In the event of such a motion or application, the material
at issue may be submitted to the Court for an in camera inspection.
6.4

All Protected Material designated as “CONFIDENTIAL” hereunder

shall be given the full protection of this Protective Order unless and until the Court

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enters an order changing the designation or modifying or terminating this
Protective Order.
VII. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Protective Order. When the litigation has been
terminated, a Receiving Party must comply with the provisions of Section 13 below
(FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Protective Order.
7.2

Names and Contact Information of Putative Class Members. With

respect to the names and contact information of putative class members produced
subject to this Protective Order, and designated as “CONFIDENTIAL,” the
following shall apply:
(a)

Plaintiff’s counsel shall maintain the names and contact information of

the putative class members as private and confidential;
(b)

Plaintiff’s counsel agrees not to use the names and contact information

of the putative class members to solicit or cause another to solicit any of the
putative class members to assert any new claim, charge, or complaint of any kind
whatsoever against Defendant or for any other purpose other than for the limited
purpose of: (i) seeking information relevant to class certification issues; (ii)
Plaintiff’s claims as set forth in the First Amended Complaint; and/or (iii)
Defendant’s defenses to Plaintiff’s claims as set forth in Plaintiff’s First Amended
Complaint.

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(c)

The names and contact information of the putative class members shall

not be disclosed by Plaintiff or his counsel to any other person except the
following: (a) the legal, clerical, paralegal, or other staff of Plaintiff’s counsel, who
will abide by the terms of this Protective Order; (b) persons retained by Plaintiff’s
counsel to furnish expert or consulting services or advice in this action, who will
abide by the terms of this Protective Order; and (c) the Court and its personnel.
The Parties agree that this Paragraph, rather than Paragraph 7.3, shall apply to the
disclosure of the names and contact information of the putative class members.
7.3

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the Court or permitted in writing by the Designating Party, or
as separately set forth in Paragraph 7.2, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this litigation;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c) Experts (as defined in this Protective Order) of the Receiving Party to
whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the Court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for
this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the Court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material may not be disclosed to anyone except as
permitted under this Protective Order.
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy
of this Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action
to disobey a lawful directive from another court.
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IX.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a)

The terms of this Protective Order are applicable to information

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produced by a Non-Party in this action and designated as “CONFIDENTIAL.”

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Such information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Protective Order. Nothing in

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these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3)

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make the information requested available for inspection

by the Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party
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shall bear the burden and expense of seeking protection in this court of its Protected
Material. Nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this action to disobey a lawful directive from
another court.
X.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately: (a) notify in writing the
Designating Party of the unauthorized disclosures; (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material; (c) inform the person or persons
to whom unauthorized disclosures were made of all the terms of this Protective
Order; and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
XI.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated
protective order submitted to the court.

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XII. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Protective Order abridges the
right of any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By having stipulated to the entry of
this Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Protective Order. Similarly, no Party waives any right to object on any ground
to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. If the Party seeking to file papers containing information or materials
designated “CONFIDENTIAL” is not the Designating Party of those materials, the
Party must first file and serve an application to file under seal and a proposed order
in accordance with the requirements of Local Rule 79-5 and this Protective
Order.
12.4 Jurisdiction. The Central District of California shall retain jurisdiction
to enforce the terms and conditions of this Protective Order, even after the final
disposition of this action, as defined in paragraph 4.
XIII. FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in
paragraph 4, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material. As used in this subdivision, “all
Protected Material” includes all copies, abstracts, compilations, summaries, and any
other format reproducing or capturing any of the Protected Material. Whether the
Protected Material is returned or destroyed, the Receiving Party must submit a
written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that: (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed; and
(2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries, or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain
an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if
such materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
IT IS SO ORDERED.

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Dated: February 19, 2014

____________________________________
MAGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ______________________________________ [print or type full name]
declare under penalty of perjury that I have read in its entirety and understand the
Protective Order that was issued by the United States District Court for the Central
District of California on February 19, 2014, in the case of John P. Chavez, Sr. v.
AmeriGas Propane, Inc., Case No. 13-cv-05813-MMM(MANx). I agree to
comply with and to be bound by all the terms of this Protective Order, and I
understand and acknowledge that failure to so comply could expose me to sanctions
and punishment in the nature of contempt. I solemnly promise that I will not
disclose in any manner any information or item that is subject to this Protective
Order to any person or entity except in strict compliance with the provisions of this
Protective Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing the terms of this
Protective Order, even if such enforcement proceedings occur after termination of
this action.
Date: _________________________________
City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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Signature: __________________________________

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