Monica Amestoy v. United Airlines Inc et al

Filing 11

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Stipulation for Protective Order, 8 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) Case No. CV13-9084 MWF (AJWx)
)
Plaintiff,
) ORDER ON STIPULATION FOR
) PROTECTIVE ORDER
vs.
)
)
UNITED AIRLINES, a subsidiary or
)
entity otherwise related to UNITED
) NOTE: CHANGES HAVE BEEN
CONTINENTAL HOLDINGS, INC., a ) MADE TO THIS DOCUM
ENT
corporation and DOES 1 through 100, )
inclusive,
)
)
Defendants.
)
)
MONICA AMESTOY, an individual,

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Upon review of the stipulation filed by the parties in this action and GOOD
CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED AS FOLLOWS:
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Any Party may designate items of discovery or other information

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produced or disclosed to any other Party as confidential and subject to the terms of

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this Protective Order, so long as any such designation is made in good faith. Items,

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including documents, tangible things or information, may be designated as

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confidential if a Party believes in good faith the information contains trade secrets,

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personal information, competitively sensitive information, sensitive security

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information, proprietary information, financial information, customer lists,

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employee information or otherwise confidential information. All documents
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designated as confidential under this Order shall be marked prior to production by

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placing the words “CONFIDENTIAL: ANY USE, COPYING OR

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DISSEMINATION OF THIS DOCUMENT IS GOVERNED BY A COURT

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ORDER” (or words to that effect) on each page of the document. Except as

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otherwise adjudicated by the Court, all items so marked, and all copies, prints,

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summaries, or other reproductions of such information, shall be subject to this

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Order.

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2.

Unless otherwise directed by the Court or through prior written

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agreement of the Parties, and subject to the limitations of Paragraph 1 above,

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information and documents subject to this Order shall not be used or shown,

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disseminated, copied, or in any way communicated to anyone for any purpose

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whatsoever, other than as required for the preparation and trial of this action,

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including any appeals. Any copies, excerpts, summaries, analyses, or other

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disclosures of, or references to, the substance or contents of any information

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designated as confidential shall be protected to the same extent as the underlying

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information. Except as provided for below and in the paragraphs that follow, the

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Parties shall keep all confidential information and documents strictly confidential

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from all persons. The application of these confidentiality provisions include,

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without limitation, prohibiting disclosure of any confidential information or

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documents by the Parties and their counsel to any media outlet, or to any

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employee, member or affiliate of any media outlet. The information and

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documents subject to this Order may be disclosed only to:

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(a) The actual named Parties, in the case of individual (non-corporate)
Parties in this action;
(b) In the case of corporate Parties in this action, officers, directors,

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insurers, in-house counsel and current and former employees of such

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corporations deemed reasonably necessary by counsel for the

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prosecution, defense, trial or appeal of this action, including
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employees and former employees of such Parties who testify as

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pretrial or trial witnesses in connection with this action;

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(c) In the case of non-parties who are not current and former employees

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of a corporate party, the author or a former recipient of such

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information or document;

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(d) Counsel (and their staff) who represent the Parties in this action;

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(e) Experts or consultants retained by counsel, whether or not they are

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expected to testify;

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(f) The Court and court personnel for any purpose the Court finds

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necessary;

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(g) Jurors and court personnel at trial of this case; and

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(h) Stenographic and/or videographic personnel hired to record testimony.

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3.

Disclosures shall be made to such persons identified in Paragraph 2,

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and such persons may review such disclosures, only as necessary for purposes of

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litigating this action. The persons identified in Paragraph 2 shall not otherwise

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disseminate the information and documents subject to this Order, or the substance

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of such information or documents.

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4.

Counsel (and counsel’s staff) for the receiving Parties will abide by,

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and be bound by, the provisions of this Protective Order, and will use due care to

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ensure that the provisions of the Protective Order are known and adhered to by

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clients, all persons under counsel’s supervision and/or control and any person, firm

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or corporation who has been retained by counsel to act on the receiving Party’s

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behalf in connection with this litigation.

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5.

With respect to deposition testimony and any document marked as an

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exhibit thereto, the designation of confidentiality may be made on the record at the

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time of the deposition, and the designated testimony shall be subject to the full

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protection of this Order, unless challenged in accordance with the procedures of

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Paragraph 14. In the case of testimony not so designated during the course of a
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deposition, counsel may so designate confidential testimony, within thirty (30)

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days of the deposition testimony and/or exhibits which contain confidential

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material, in which case the designated testimony and/or exhibits shall be subject to

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the full protections of this Order. Until the thirty (30) day period for notification

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has elapsed, deposition transcripts in their entirety and all exhibits are to be

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considered as confidential and proprietary and subject to the provisions of this

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Protective Order. If, prior to and/or during the course of a deposition, a witness

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refuses to be bound by the terms of the Protective Order, the deposition shall be

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adjourned until application can be made to the Court regarding the deposition.

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6.

Each person given access to documents and information subject to this

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Order, except those persons identified in paragraph 2(d), (f), and (g) above and

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except witnesses shown confidential documents for the first time at a deposition or

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in court where a court reporter is present, must acknowledge this Order and agree,

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in writing, to be bound by all its terms and conditions. This requirement must be

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satisfied by obtaining the signature of the person or persons on a copy of the

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Agreement to Be Bound By Protective Order attached as Exhibit “A” hereto. By

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agreeing to be bound by this Order, each person consents to the jurisdiction of this

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Court over his or her person for any proceedings involving alleged improper

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disclosure of documents or information protected by this Order. Each Party shall

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maintain the original signed written agreements and a verified list of all experts,

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consultants or persons to whom the information and documents or copies thereof

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were revealed. The list of signatories shall not be revealed to any other person or

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persons except through court order, which shall only be granted upon a showing of

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good cause. The Parties agree that a prima facie showing of good cause may be

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established by evidence that a protected document has been disseminated or used

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contrary to the terms of this Order (e.g., is in the possession of one not bound by

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the terms of this Order) and that a reasonable basis exists to find that a particular

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individual or Party (or agents thereof) improperly used or disseminated the
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confidential information. The Party that appears to have improperly disseminated

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the protected document or information shall be required to produce its list of

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signatories to the Agreement to Be Bound by Protective Confidentiality Order to

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the Party having claimed confidentiality. If a witness is shown confidential

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documents for the first time at a deposition or in court where a court reporter is

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present for delivery on the record, then delivery of this Order on the record shall

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cause the witness to be bound by this Order, and the witness shall be subjected to

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the jurisdiction of this Court over his or her person for any proceedings involving

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alleged improper disclosure of documents or information protected by this Order.

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7.

If a Party intends to submit to the Court a document marked as

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confidential either before or during trial, that Party or any other Party may request

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that such document be placed under seal. If the Parties agree, such request shall be

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presented to the Court as a stipulated motion. Otherwise, the request shall be

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presented to the Court as a contested motion. Good cause must be shown for the

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under seal filing*. The purpose of this provision is to avoid placing documents

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under seal unnecessarily.

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8.

Neither this Order nor the designation of any item as confidential shall

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be construed as an admission that such document, information or testimony would

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be admissible in evidence in this litigation or in any other proceeding. In addition,

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this Protective Order does not, of itself, require the production of any information

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or documents; nor does the existence of this Order constitute an admission or

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finding that any material marked as confidential is entitled to protection under

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applicable law.

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9.

Nothing in this Order shall be deemed a waiver of any Party’s right to:

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(a) oppose discovery on grounds other than that the same constitutes or contains

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confidential information, or (b) object on any ground to the admission in evidence,

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at the trial of this action, of any confidential information.

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10.

If any Party wishes to petition the Court to modify this Order or its

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application to certain documents or information, the Party shall follow all

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applicable rules of Civil Procedure and Local Rules in petitioning the Court for

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relief.

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11.

All Parties, within sixty (60) days of the final conclusion of all aspects

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of this litigation, or a dismissed Party within thirty (30) days of that Party’s

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dismissal with prejudice prior to the final conclusion of all aspects of this

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litigation, shall:

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(a) Provide to the Party’s counsel that originally produced confidential

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information a copy of all Agreements executed pursuant to paragraph 6,

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above; and

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(b) Retrieve all such confidential information, including all copies thereof

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and all documents identifying such confidential information, in that

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party’s possession, custody or control, or in the possession, custody or

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control of all such persons to whom the confidential information was

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disseminated pursuant to paragraph 6 to the extent reasonably possible,

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and either: 1) return all such confidential information to the Party’s

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counsel that originally produced the confidential information (redacting

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any work product of the receiving counsel) at the producing counsel’s

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business office or any subsequent address designated by that counsel, or

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2) completely destroy all such confidential information in the possession

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of counsel or the party; and

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(c) Provide a declaration under the penalty of perjury stating that a good

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faith effort was made to retrieve all such confidential information

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received and/or disseminated, and that all such confidential information

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has been either returned or destroyed as indicated in subparagraph (a) and

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(b) above.

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12.

Up and until the commencement of trial, but not thereafter, the

provisions of this Order relating to the confidentiality of protected documents and
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information shall remain in full force and effect and continue to be binding, except

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with respect to documents or information that is publicly available. This Court

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retains jurisdiction over all persons provided access to confidential materials or

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information for enforcement of the provisions of this Order up and until trial is

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commenced, but not thereafter.

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13.

Nothing in this Order shall be deemed to preclude any Party from

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seeking or obtaining, on the appropriate showing, additional protection with

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respect to the confidentiality of documents or information. Nor shall any provision

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of this Order be deemed to preclude any Party from challenging the validity of the

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confidentiality of any materials or information so designated.
14.

If a Party elects to challenge the designation of confidentiality

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(“Challenging Party”) of any document, information or testimony, the Challenging

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Party shall notify the Party who designated the challenged document (“Designating

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Party”) as confidential of its challenge, in writing. Once the challenge is raised,

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the Parties shall promptly confer and make reasonable and good faith efforts to

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resolve the disagreement without intervention by the Court. If they are unable to

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resolve their differences in good faith within ten (10) days of receipt of the

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challenge, the Challenging Party shall file a request for a ruling from the Court

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with respect to the confidential treatment of the information at issue within thirty

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(30) days of completion of the meet and confer efforts. The Designating Party

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shall have the burden to prove that the challenged document, information or

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testimony is entitled to protection under applicable law. Until such time as the

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Parties’ contentions regarding the confidentiality of documents, information or

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testimony are fully and finally adjudicated, all documents, testimony or other

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materials designated by defendants as confidential shall retain their confidential

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status. Nothing in this agreement shall be deemed to alter, modify or reduce the

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burden on any party asserting a privilege to make out all elements of the privilege

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claimed.
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15.

It is recognized by the Parties to this Protective Order that documents

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or testimony may be designated inadvertently or erroneously as confidential, or

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that such a designation inadvertently or erroneously may be omitted with respect to

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documents or information that are entitled to such protection. Any Party to this

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Protective Order may correct its designation or lack thereof within a reasonable

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time and shall, at its own expense, furnish to all counsel copies of the documents

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for which there is a change in designation.

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16.

It is recognized by the Parties that documents or testimony stamped as

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confidential may be inadvertently disclosed to third parties by a receiving Party.

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Any receiving Party may correct this inadvertent disclosure without sanction by

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immediately bringing it to the attention of the producing Party by letter to the

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producing Party’s counsel in which the third Party is identified by name and

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address. The receiving Party shall further provide an affidavit of counsel

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confirming that to the best of his or her knowledge the documents and any copies

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thereof were recovered from the third party.

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17.

All documents or information produced by the Parties prior to the

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entry of this Protective Order by the Court shall be subject to the provisions of this

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Protective Order to the same extent as if such Protective Order had been entered by

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the Court as of the date such documents or information were produced. Producing

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Parties shall have thirty (30) days from the date of entry of this Order to designate

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already-produced materials as confidential. However, documents or information

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obtained through means other than discovery in this action shall not be subject to

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this Protective Order.

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18.

In the event that any person identified in paragraph 2 above who has

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been provided access to confidential information produced in this action (“Person

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Served”): (a) is served with a subpoena in another action, or (b) is served with a

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demand in another action to which he or she is a party, or (c) is served with any

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other legal process by one not a Party to this litigation, seeking information that
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has been produced in this action by another Party and which is subject to this

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Protective Order, the Person Served shall give prompt written notice of such event

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to counsel of record for the Party that produced the information. Upon receipt of

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written notice, the Party which produced the information shall advise the Person

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Served of that Party’s position with respect to the protected information.

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Thereafter, the Party which produced the information shall assume responsibility

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for prosecuting any objection to the discovery requests, subpoena or demand, and

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the Person Served shall cooperate to the extent necessary to preserve the

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confidentiality of the information. Should the person seeking access to

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information take action to enforce such discovery requests, subpoena, demand, or

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other legal process, the Person Served shall set forth in his response the existence

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of this Stipulated Protective Order. Nothing herein shall be construed as requiring

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the receiving Party to challenge or appeal any order requiring production of the

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information.

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19.

This Order shall not prejudice the Parties’ rights or arguments

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regarding whether documents or information used at trial do or do not remain

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confidential. Such issues will be taken up as a separate matter upon motion of any

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Party.

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*For the correct standard, see Oliver v. Kontrabecki, -F·3d-, 2014 WL 1088254,

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*1(9th Cir. March 20, 2014

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EXHIBIT “A”

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I, the undersigned, acknowledge that I will be receiving documents that have

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been designated confidential and subject to the terms of the Stipulated Protective

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Order entered in the above-captioned case. I understand that such confidential

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material is to be provided to me pursuant to the terms and restrictions of the

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aforementioned Protective Order and acknowledge that I have been given a copy

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of and have read that Protective Order. I understand that any use by me of

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documents or information designated confidential under the Stipulated Protective

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Order, or any portion or summaries thereof, in any manner contrary to the

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provisions of the Stipulated Protective Order, will subject me to the sanctions of

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the Court. I hereby agree to be bound by all of its terms.

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I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct.
Dated this __ day of _________________, _______.

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________________________________________
Signature
________________________________________
Printed Name

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IT IS SO ORDERED.
DATED: __4/3__, 2014

_______________________________
Hon. Andrew J. Wistrich
United States Magistrate Judge

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[PROPOSED] ORDER ON STIPULATION FOR PROTECTIVE
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CASE NO.: CV13-9084 MWF (AJWx)

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