Luis E Gaytan v. Bimbo Bakeries USA Inc et al

Filing 33

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 32 . (san)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LUIS E. GAYTAN, RENE H.
SANCHEZ, and ANDRES
BERNARDINO on behalf of
themselves, and all others similarly
situated,

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

Plaintiffs,
vs.
BIMBO BAKERIES USA, INC., a
corporation; and DOES 1 through 100,
Inclusive,
Defendants.

Case No. CV 13-8471 MWF (JEMx)
[PROPOSED] PROTECTIVE ORDER
REGARDING THE
CONFIDENTIALITY OF DISCOVERY
MATERIALS

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Pursuant to the Parties’ Stipulation request for a Rule 26(c) Protective Order
and the Court finding good cause for granting the requested relief, the Court hereby
enters the following Protective Order regarding the Confidentiality of Discovery
Materials (hereinafter “Protective Order”) in the above-titled case:

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1.

The Parties shall have the right to limit access to any document, data,

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or information produced in discovery or other item relevant to this litigation,

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including without limitation, data or documents produced by a party or third third-

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party, answers to interrogatories, and any portion of deposition testimony or other

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testimony by a witness, to the counsel for the Parties. Such documents and data

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include, without limitation, those that contain confidential compensation, benefits,

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work hours, and other personal information pertaining to putative class members

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other than the named Plaintiffs.

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2.

Such documents or other tangible items must be designated by

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conspicuously stamping the words “COUNSEL ONLY” on each page of the

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designated material or by notifying the other Party in writing of the material to be

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considered so designated. With regard to testimony, a Party must notify the other

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parties of the portion of testimony to be designated “COUNSEL ONLY” on the

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record at the deposition.

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3.

All information and documents designated as “COUNSEL ONLY”

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shall be used only for the purposes of this action and shall not be used for any other

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purpose except upon written consent of the designating party or order of the Court.

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All information, data, and documents produced by Defendant for purposes of

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mediation shall be designated as “COUNSEL ONLY” without objection by

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Plaintiffs or their counsel. All information designated as “COUNSEL ONLY” shall

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be held in confidence and shall not be revealed, discussed, or disclosed in any

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manner, in any form, to any person or entity other than:

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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a.

firms, in-house counsel for Defendant, and the employees of any of the above
counsel to whom it is necessary that the information be disclosed for purposes of
this litigation only;

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b.

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consultant agrees in writing to comply with the terms of this Protective Order in the
format attached as Exhibit A hereto;
d.

of this action, provided that all individual identifier information and all individual
compensation and benefits information pertaining to putative class members other
than the named Plaintiffs is redacted before the document(s) or information
designated for “COUNSEL ONLY” is shared with the witness(es) and only if, prior
to any such dissemination, the witness(es) provide a written statement in the format
attached as Exhibit “A” hereto, that they agree to be bound by this Protective Order;
e.

f.

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any other person, entity, or firm with the prior written consent of

all Parties; or

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any person who was involved in the preparation of the document

or information;

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any trial or deposition witnesses, but only to the extent

reasonably deemed necessary by counsel for the prosecution, defense or settlement

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any outside expert or consultant engaged by a Party for the

purpose of assisting in this litigation, provided, however, that such outside expert or

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the Court and its personnel;

c.

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the undersigned counsel and attorneys from their respective law

g.
4.

any mediator selected by the parties.

The Parties shall also have the right to designate as

“CONFIDENTIAL” any information, documents, data, or other item relevant to
this litigation, including, without limitation, data or documents produced by a party
or third-party, answers to interrogatories, and any portion of deposition testimony
or other testimony by a witness. Such documents and data include, without

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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limitation, policies, employment records, payroll records, financial/accounting
records of any Party, and time-keeping data.
5.

Such documents or other tangible items must be designated by

conspicuously stamping the words “CONFIDENTIAL” on each page of the
designated material or by notifying the other Party in writing of the material to be
considered so designated. With regard to testimony, a Party must notify the other
parties of the portion(s) of the record to be designated “CONFIDENTIAL” on the
record at the deposition.
6.

All information and documents designated as “CONFIDENTIAL”

shall be used only for the purposes of this action and shall not be used for any other
purpose except upon written consent of the designating party or order of the Court.
All information and documents designated as “CONFIDENTIAL” shall be held in
confidence and shall not be revealed, discussed, or disclosed in any manner, in any
form, to any person or entity other than:
a.

the named Plaintiffs in this action, the undersigned counsel, and

attorneys from their respective law firms, in-house counsel for Defendant, and the
employees of any of the above counsel to whom it is necessary that the information
be disclosed for purposes of this litigation only;
b.

the Court and its personnel;

c.

any expert or consultant engaged by a Party for the purpose of

assisting in this litigation, provided, however, that such outside expert or consultant
agrees in writing to comply with the terms of this Protective Order in the format
attached as Exhibit A hereto;
d.

any trial or deposition witnesses, but only to the extent

reasonably deemed necessary by counsel for the prosecution, defense or settlement
of this action and only if, prior to any such dissemination, the witness(es), other
than witnesses produced or identified by the Defendant, provide a written statement

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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in the format attached as Exhibit “A” hereto, that they agree to be bound by this
Protective Order;

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e.
or information; or

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f.

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any other person, entity, or firm with the prior written consent of

all Parties, but only if that third party provides a written statement in the format
attached as Exhibit “A” hereto, that they agree to be bound by this Protective Order;
or

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any person who was involved in the preparation of the document

g.
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any mediator selected by the parties.

Any Party that provides information, documents or other discovery

obtained from any other Party in the course of this litigation designated as
“CONFIDENTIAL” to any person permitted under this Protective Order, including
the named Plaintiffs and witness(es), or any expert (other than the Court, court
personnel, and court reporters or any mediator selected by the parties) will ensure
that the receiving person is advised of this Protective Order and agrees to be bound
by it by obtaining a written statement in the format attached as Exhibit “A” hereto.
8.

When any document or information designated “COUNSEL ONLY”

or “CONFIDENTIAL” or other pleadings or papers disclosing or referring to such
information are used in connection with any motion, hearing, filing or other
submission to the Court, those materials and papers, or any portion thereof that
discloses information designated as “COUNSEL ONLY” or “CONFIDENTIAL,”
the filing party must be submitted to the Court with an application under L.R. 79-5
to be filed under seal and/or the private information must be redacted after
consultation with the producing party concerning appropriate redactions. Even if
the filing party believes that the materials subject to this Protective Order are not
properly classified as confidential, the filing party shall comply with the
requirements of L.R. 79-5; provided, however, that the filing of the documents

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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under L.R. 79-5 shall be without prejudice to the filing party’s rights under ¶ 9 of
the Protective Order. This Protective Order does not entitle the Parties to file any
information under seal. The Central District of California’s Local Rules, including
L.R. 79, sets forth the procedures that must be followed and the standards that will
be applied when a party seeks permission from the Court to file material under seal.
9.

Nothing in this Protective Order shall preclude any Party from

challenging a designation of “COUNSEL ONLY” or “CONFIDENTIAL” by
another Party.
a.

If any Party elects to challenge a designation of any data,

document, interrogatory response, deposition testimony, or other information
pursuant to this Order, that Party must provide at least ten (10) days advance
written notice to afford the designating Party an opportunity to remove voluntarily
such designation.
b.

If, after the ten-day period has expired, the designating Party has

not agreed to remove the designation and the Parties are otherwise unable to resolve
the challenge to the designation after conferring in good faith in person or by
phone, the challenging and designating Parties shall contact the Court, if allowed by
the Court, for a determination of whether the challenged designation is appropriate.
The designating Party shall provide the Court with one copy of the material
challenged. If the designating party does not initiate a determination, as defined
below, of the designation by the Court within ten (10) days after the ten-day period
has expired, the documents, deposition testimony, or other information at issue will
lose the designation of “COUNSEL ONLY” or “CONFIDENTIAL.” The
designating party must initiate determination of the designation by the Court by
following the procedures: (1) calling the Magistrate Judge’s clerk and requesting a
telephonic or in-person hearing, and, if requested by the Magistrate Judge; (2)
sending a letter to the challenging party under Central District Local Rule 37-1,

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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followed by a conference of counsel under L.R. 37-1 and the designating party
sending that party’s portion of a joint stipulation under L.R. 37-2 to the challenging
party within ten (10) days after the conference of counsel.

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c.

If a Party challenges a designation of “COUNSEL ONLY” or

“CONFIDENTIAL” to the Court, the material is to be treated as “COUNSEL
ONLY” or “CONFIDENTIAL” until such time as the Court has ruled on the
challenge, at which time the “COUNSEL ONLY” or “CONFIDENTIAL”
designation will be removed only if the Court so orders.
10.

In addition to the obligations of the Parties and their counsel to ensure

compliance with this Protective Order by third parties who execute Exhibit A
hereto, nothing in this Protective Order shall preclude any Party from seeking from
the Court an Order binding third parties to abide by this Protective Order.
11.

Within sixty (60) days after the close of this litigation for any reason,

each Party and its counsel shall retrieve all copies of materials designated
“COUNSEL ONLY” or “CONFIDENTIAL” from his and/or its own files, and
from experts or other persons to whom he or it has provided such materials, and
shall do one of the following: (1) return to the designating Party all such materials,
including all copies thereof, produced by such designating Party during this action,
however, if counsel for either party is legally and/or ethically obligated to produce,
review and/or rely on “COUNSEL ONLY” or “CONFIDENTIAL” information and
documents, counsel for the producing party shall provide such necessary
“COUNSEL ONLY” or “CONFIDENTIAL” information and documents within 21
calendar days of the written request; or (2) certify in writing to the designating
Party that all materials designated “COUNSEL ONLY” or “CONFIDENTIAL”
produced by such other Party during this action have been destroyed, however, if
counsel for either party is legally and/or ethically obligated to produce, review
and/or rely on “COUNSEL ONLY” or “CONFIDENTIAL” information and

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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documents, counsel for the producing party shall provide such necessary
“COUNSEL ONLY” or “CONFIDENTIAL” information and documents within 21
calendar days of the written request. In addition to these obligations, within fortyfive (45) days after the completion of the mediation, if any, Plaintiffs’ counsel shall
retrieve from their files and from all experts they have retained all copies of data
and spreadsheets provided by Defendant to Plaintiffs’ counsel for purposes of
mediation, as well as all other compilations, lists or summaries of those materials,
and shall return all such materials to Defendant or certify in writing to Defendant
that all such materials have been destroyed, which shall include completely erasing
all copies of the materials from computer databanks, hard drives, external drives,
and disks.
12.

To the extent that any information and documents designated as

“COUNSEL ONLY” or “CONFIDENTIAL” are produced by a Party in connection
with any mediation in this action, the receiving counsel shall not forward any
electronic copies or hard copies of such documents to anyone else, other than
experts, and shall return such documents and all copies thereof immediately upon
the conclusion of the mediation or after the dismissal of certain claims and shall not
retain any copies, summaries, or electronic images of such documents.
Notwithstanding the foregoing, the Parties may mutually agree to extend the time
for the return of such documents to facilitate continued settlement discussions, if
any. The named Plaintiffs may review the hard copy or electronic information
provided by a Party in connection with mediation or in connection with the
dismissal of certain claims, but may not independently receive copies of such
information.
13.

Nothing herein contained shall be construed to preclude or limit any

Party from opposing any discovery on any grounds that would otherwise be
available. This Protective Order shall not, in and of itself, prejudice any contention

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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of any Party upon any motion, nor shall this Protective Order constitute a waiver of
any right to seek relief from the Court from any and all of the provisions hereof or
other modifications of the terms hereof. This Protective Order shall not limit any
Party’s right to seek judicial review or to seek further and additional protection
against or limitation upon production or dissemination of information and
documents or their contents.
14.

Nothing herein shall be construed to preclude or limit the presence of

any individual at any hearings in, or the trial of, this action.
15.

Inadvertent failure to designate material as “COUNSEL ONLY” or

“CONFIDENTIAL” shall not be construed as a waiver, in whole or in part, and
may be corrected by the producing party by written notification to the recipient
promptly upon discovery of the failure to designate.
16.

Nothing in this Protective Order shall be deemed to be a limit or

waiver of the attorney-client privilege, the work product doctrine, or any other
relevant privilege. Further, inadvertent production of privileged information shall
not waive the privilege. If privileged information is inadvertently produced, the
recipient agrees that, upon written request from the producing party, it shall
promptly return all copies of documents and/or electronic media provided
containing the privileged information, and make no use of the privileged
information.
17.

In the event that any Party or their counsel obtains information from a

third party that the Party believes in good faith to be confidential, the Party may
designate such information “COUNSEL ONLY” or “CONFIDENTIAL” pursuant
to this Protective Order and it shall be treated as such in accordance with the
Protective Order.
18.

Upon the final resolution of this litigation, the provisions of this

Protective Order shall continue to be binding. The Court will expressly retain

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ATTORNEYS AT LAW
LOS ANGELES

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jurisdiction over this action for enforcement of the provisions of this Protective
Order following the final resolution of this litigation.
19.

This Protective Order is binding on all Parties to this action and on all

third parties who have been served with a copy of this Protective Order, and shall
remain in force and effect until modified, superseded, or terminated by consent of
the Parties or by Order of the Court.
IT IS SO ORDERED.
Dated: June 23, 2014

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John E. McDermott
United States Magistrate Judge

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MORGAN, LEWIS &
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ATTORNEYS AT LAW
LOS ANGELES

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EXHIBIT A

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AGREEMENT CONCERNING INFORMATION
COVERED BY A STIPULATED PROTECTIVE ORDER

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The undersigned hereby acknowledges that he/she has read the Stipulated

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Protective Order Regarding Confidentiality Of Discovery Material (“Protective

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Order”) in Luis E. Gaytan, et al. v. Bimbo Bakeries USA, Inc., Civil Action No. CV

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13-8471 MWF (JEMx), and understands their terms, agrees to be bound by each of

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those terms, and agrees to subject himself/herself personally to the jurisdiction of

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the United States District Court for the Central District of California for the purpose

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of enforcing their terms. Specifically, and without limitation upon such terms, the

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undersigned agrees not to use or disclose any information designated as Counsel

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Only or Confidential made available to him/her other than in accordance with the

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Protective Order.

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Dated:

By:
(Type or print name of individual)

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Of:

Name of Employer

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES

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