Oak Tree Racing Association v. Service Employees International Union National Industry Pension Fund
Filing
58
PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 56 . (ec)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE CENTRAL DISTRICT OF CALIFORNIA
10
11
12
OAK TREE RACING ASSOCIATION, A
CALIFORNIA NON-PROFIT MUTUAL
BENEFIT CORPORATION
13
14
15
Plaintiff,
Case No. 2:14-cv-4207 PSG (RZx)
PROTECTIVE ORDER ENTERED
PURSUANT TO THE STIPULATION OF
THE PARTIES
vs.
19
SERVICE EMPLOYEES INTERNATIONAL
UNION NATIONAL INDUSTRY PENSION
FUND, A MULTIEMPLOYER EMPLOYEE
BENEFIT PLAN AND TRUST
ORGANIZED UNDER THE LAWS OF THE
DISTRICT OF COLUMBIA AND
GOVERNED BY THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT
of 1974
20
Defendant; and
21
LOS ANGELES TURF CLUB, INC.,
HOLLYWOOD PARK RACING
ASSOCIATION, LLC, and HOLLYWOOD
PARK FALL RACING ASSOCIATION,
LLC,
16
17
18
22
23
24
25
Defendant-Intervenors,
continued on next page
26
27
28
STIPULATED PROTECTIVE ORDER
1
2
3
4
5
6
SERVICE EMPLOYEES INTERNATIONAL
UNION NATIONAL INDUSTRY PENSION
FUND, and STEPHEN ABRECHT,
RODERICK S. BASHIR, CHRIS BOUVIER,
KEVIN J. DOYLE, THOMAS E.
LaMARTINA, MYRIAM ESCAMILLA,
EDWARD J. MANKO, FRANK A.
MAXSON, JOHN J. SHERIDAN and DAVID
A. STILWELL, as Trustees of the Service
Employees International Industry Pension
Fund
7
Counter Claimants,
8
v.
9
OAK TREE RACING ASSOCIATION,
10
Counter Defendant.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
PROTECTIVE ORDER
1
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties’
2
Stipulated Protective Order (“Stipulation”) filed on May 28, 2015, the terms of the protective
3
order to which the parties have agreed are adopted as a protective order of this Court (which
4
generally shall govern the pretrial phase of this action) except to the extent, as set forth below,
5
that those terms have been substantively modified by the Court’s amendment of section VIII
6
paragraph 5 the Stipulation.
7
The parties are expressly cautioned that the designation of any information, document, or
8
thing as CONFIDENTIAL or other designation used by the parties, does not, in and of itself,
9
create any entitlement to file such information, document, or thing, in whole or in part, under seal.
10
Accordingly, reference to this Protective Order or to the parties’ designation of any information,
11
document, or thing as CONFIDENTIAL or otherwise is wholly insufficient to warrant a filing
12
under seal.
13
There is a strong presumption that the public has a right of access to judicial proceedings
14
and records in civil cases. In connection with non-dispositive motions, good cause must be
15
shown to support a filing under seal. The Court may only enter a protective order upon a showing
16
of good cause, Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),
17
Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
18
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
19
good cause showing); and a specific showing of good cause or compelling reasons (see below),
20
with proper evidentiary support and legal justification, must be made with respect to each
21
document or item that a party seeks to have filed under seal.
22
Further, if sealing is requested in connection with a dispositive motion or trial, then
23
compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief
24
sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v.
25
Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of
26
information, document, or thing sought to be filed or introduced under seal in connection with a
27
dispositive motion or trial, the party seeking protection must articulate compelling reasons,
28
supported by specific facts and legal justification, for the requested sealing order. Again,
3
PROTECTIVE ORDER
1
competent evidence supporting the application to file documents under seal must be provided
2
by declaration.
3
Any document that is not confidential, privileged, or otherwise protectable in its entirety
4
will not be filed under seal if the confidential portions can be redacted. If documents can be
5
redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or
6
otherwise protectable portions of the document, shall be filed. Any application that seeks to file
7
documents under seal in their entirety should include an explanation of why redaction is not
8
feasible.
9
Notwithstanding any other provision of this Protective Order, in the event that this case
10
proceeds to trial, all information, documents, and things discussed or introduced into evidence at
11
trial will become public and available to all members of the public, including the press, unless
12
sufficient cause is shown in advance of trial to proceed otherwise.
13
Further, notwithstanding any other provision of this Protective Order, no obligation is
14
imposed on the Court or its personnel beyond those imposed by the Court’s general practices and
15
procedures.
16
THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND ACT IN
17
COMPLIANCE WITH ALL ORDERS ISSUED BY THE HONORABLE JOHN F.
18
WALTER, UNITED STATES DISTRICT JUDGE, INCLUDING THOSE APPLICABLE
19
TO PROTECTIVE ORDERS AND FILINGS UNDER SEAL.
20
21
AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND
22
MODIFIED BY THE COURT1
23
This Stipulation governs the covenant of Plaintiff and Counter Defendant Oak Tree
24
Racing Association (“Plaintiff”), the Defendant-Intervenors LA Turf Club, Inc., Hollywood Park
25
Fall Racing Association, LLC, and Hollywood Park Racing Association, LLC, and the
26
27
28
1
The Court’s substantive modifications of the agreed terms of the Protective Order are
generally indicated in bold typeface.
4
PROTECTIVE ORDER
1
Defendants and Counter Claimants, the SEIU-NIPF and its Trustees (collectively, “Parties”). The
2
Parties, through their respective counsel, hereby stipulate and agree that any documents,
3
information, testimony or transcripts (“Material”) deemed by any Party or by any person or entity
4
that is not a party to this action (“Third-Party”) to be confidential, proprietary, trade secret and/or
5
subject to a right of privacy (“Confidential Information”), shall be designated and protected
6
according to the following terms and conditions:
7
I.
8
9
DESIGNATING PROTECTED MATERIAL
Any Party or Third-Party may determine in good faith whether any Material should be
designated as “CONFIDENTIAL” (“Designating Party”). However, such good faith belief must
10
be based on the fact that such information has not been made public and the Designating Party
11
must have a reasonable and good faith belief that if such information is disclosed it will have the
12
effect of causing harm to a Party’s or Third-Party’s competitive position, protection of trade
13
secrets or otherwise impinge upon a Party or Third-Party’s right to privacy or confidentiality.
14
Material that is publicly-available shall not be designated as “CONFIDENTIAL.” Further,
15
Material that was previously produced in this action shall not be considered “CONFIDENTIAL”
16
under the terms of this Protective Order unless it was marked “CONFIDENTIAL” or is
17
subsequently designated as “CONFIDENTIAL” by a Party or Third-Party.
18
Parties and Third-Parties shall also have the right to designate as “CONFIDENTIAL”
19
Material produced, served or provided by other Parties or Third-Parties, in which case the
20
Designating Party shall notify the other Parties and/or Third-Parties of the Material that should be
21
treated as “CONFIDENTIAL” pursuant to this Stipulated Protective Order. Any Material, or any
22
part thereof, designated as “CONFIDENTIAL” shall be used only for the litigation of this action,
23
including discovery, pre-trial proceedings, trial, appellate proceedings and petitions for
24
reconsideration and/or review, related arbitration, and shall not be used for any business,
25
commercial or other purpose. Except as otherwise provided in this Stipulated Protective Order,
26
or as otherwise stipulated or ordered, any Material that a Party or Third-Party deems
27
“CONFIDENTIAL” must be clearly so designated. Designation in conformity with this
28
Stipulated Protective Order requires the following:
5
PROTECTIVE ORDER
1
1.
For Material in documentary form (apart from transcripts of depositions or other
2
pretrial or trial proceedings), the Designating Party (either Party or Third-Party) producing the
3
documents may affix the legend “CONFIDENTIAL” at the top or bottom of the document or by
4
watermarking of each page of a document that contains confidential Information.
5
2.
For testimony given in deposition, the Designating Party shall identify either (a) on
6
the record before the close of the deposition, or (b) within 20 days after receiving the transcript of
7
such deposition, all portions of the testimony that it wants to designate as “CONFIDENTIAL.”
8
Only those portions of the testimony that are designated for protection during the deposition, or
9
within the 20 days after receipt of the transcript of such testimony, shall be covered by the
10
provisions of this Stipulated Protective Order. The court reporter shall affix to the top or bottom
11
of each page of a transcript containing Confidential Information the legend “CONFIDENTIAL”
12
as instructed by a Designating Party’s instructions. For testimony given in pretrial, trial
13
proceedings, or any such court proceedings, the Parties will address any Confidential Information
14
with the judicial officer conducting the proceeding at the time of any such proceeding.
15
3.
For any Material produced in other than documentary form and for any other
16
tangible items, the Designating Party producing such Material or tangible item shall affix in a
17
prominent place on the exterior of the container or containers in which the material or item is
18
stored the legend “CONFIDENTIAL.” If only portions of the information or item warrant
19
protection, the Designating Party, to the extent practicable, shall identify the protected portions.
20
If, after production, a Party or Third-Party designates as “CONFIDENTIAL” any non-
21
documentary Material or tangible item not previously designated, then any Party in possession of
22
such Material or tangible item shall designate it as such in accordance with this Stipulated
23
Protective Order.
24
II.
25
26
27
28
ACCESS TO AND USE OF CONFIDENTIAL INFORMATION
1.
Subject to paragraph 2 below, all Material designated as “CONFIDENTIAL” may
be disclosed only to:
a.
Outside counsel for a Party and in-house counsel for any Party responsible
for overseeing this action, as well as their employees and other persons or entities retained
6
PROTECTIVE ORDER
1
by such counsel to provide litigation-related services;
2
b.
Experts, consultants and other independent contractors retained or
3
employed to consult with, advise or assist counsel for a Party in the preparation, trial or
4
arbitration of this case, as well as their employees;
5
6
c.
The Parties to this action and their current trustees, directors, officers,
administrators, and employees;
7
d.
Witnesses who are being prepared by counsel to give testimony at a
8
deposition, hearing or trial, or who are being examined by counsel at a deposition, hearing
9
or trial; and
10
e.
Personnel employed by the United States District Court for the Central
11
District of California (“Court”) or any appellate court, including the Ninth Circuit Court
12
of Appeals, appellate court justices, court reporters, clerks and administrative support
13
personnel;
14
15
f.
personnel, to whom the dispute is tendered; and
16
17
Any mediator, settlement officer, or arbitrator, and their supporting
g.
2.
Any other person(s) mutually agreed to in writing by the Parties.
Parties shall take appropriate measures to ensure that all persons permitted access
18
to Material designated as “CONFIDENTIAL” under paragraph II(1)(b), (c) or (d) of this
19
Stipulated Protective Order have agreed, prior to reviewing any such Confidential Information, to
20
be bound by the terms and conditions hereof with respect to the restricted disclosure and use of
21
such Confidential Information. Prior to receiving any Confidential Information, those persons
22
shall sign a copy of the statement attached hereto as Exhibit A, agreeing to be bound by the terms
23
of this Stipulated Protective Order and submitting to the jurisdiction of the Court to enforce this
24
Stipulated Protective Order. The Party who obtains any such signed statements shall retain
25
possession of the statements and shall provide a copy of the statements at the written request of
26
another Party. However, under no circumstances shall any Party be required to disclose the
27
identity or existence of any expert, consultant or witness until otherwise required to do so by law
28
or order of the Court or an arbitrator to whom the dispute is tendered.
7
PROTECTIVE ORDER
1
III.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
2
If, at any time during the pendency of this action, counsel for any Party wishes to
3
challenge a Designating Party’s designation of Material as containing Confidential Information,
4
and to exclude such Material from the provisions of this Stipulated Protective Order, the Party
5
shall follow the procedures for seeking judicial intervention for discovery disputes, as set forth in
6
Local Rule 37. The Parties shall also first meet and confer in a good faith effort to resolve
7
informally any disputes concerning this Stipulated Protective Order before seeking judicial
8
intervention. A Party does not waive its right to challenge a confidentiality designation by electing
9
not to mount a challenge promptly after the original designation is disclosed.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
IV.
INADVERTENT OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL OR
PRIVILEGED INFORMATION
1.
Inadvertent production without prior designation of any Confidential Information
shall be without prejudice to a Designating Party’s right to later seek to have the Confidential
Information designated as “CONFIDENTIAL” and such Party shall not be held to have waived
any rights by such inadvertent production. In the event that any Material that is subject to a
“Confidential” designation is inadvertently produced without such designation, the Party that
inadvertently produced the Material shall give written notice of such inadvertent production within
twenty (20) days of discovery of the inadvertent production, together with a further copy of the
subject Material designated as “Confidential” (the “Inadvertent Production Notice”). Upon receipt
of such Inadvertent Production Notice, the inadvertently produced Material shall be treated by
the receiving party as Confidential pursuant to this Paragraph. In the event that this provision
conflicts with any applicable law regarding waiver of confidentiality through the inadvertent
production of Material, such law shall govern. If the receiving Party wishes to contest that any
such Material should be designated as Confidential, the receiving Party shall follow the
procedures for seeking judicial intervention for discovery disputes, as set forth in Local Rule 37,
including meeting and conferring in good faith with the producing Party.
2.
The inadvertent production or disclosure of any Material otherwise protected by
the attorney-client privilege or work product immunity shall not operate as a waiver of any such
28
8
PROTECTIVE ORDER
1
privilege or immunity if, after learning of the inadvertent production or disclosure, the Party who
2
made the inadvertent production or disclosure sends to any receiving Party a written request for
3
the return or destruction of such documents or things. Upon receiving such a request, the
4
receiving Party shall immediately take all necessary steps to return or destroy such documents or
5
things, including all copies and electronic copies, and make a written certification to the
6
producing Party of such compliance. If the receiving Party disclosed the inadvertently produced
7
document or thing before being notified by the producing Party, it must take reasonable steps to
8
retrieve the inadvertently produced Material. If the receiving Party wishes to contest that any
9
such Material was inadvertently produced or whether it is protected by the attorney-client
10
privilege or by work-product immunity, the receiving Party shall follow the procedures for
11
seeking judicial intervention for discovery disputes, as set forth in Local Rule 37, including
12
meeting and conferring in good faith with the producing Party. With respect to documents and
13
things subsequently generated by a receiving Party, which documents and things contain
14
information derived from such inadvertently produced Materials, if the receiving Party does not
15
notify the producing Party that the requesting Party disputes the claims of attorney-client
16
privilege or work-product immunity, the receiving Party shall immediately destroy or redact the
17
derivative documents and things in a manner such that the derivative information cannot in any
18
way be retrieved or reproduced.
19
V.
20
MAINTENANCE AND FILING OF CONFIDENTIAL INFORMATION
1.
All Material designated as “CONFIDENTIAL” shall be kept in secure facilities. A
21
“secure facility” is a place where access is restricted to only those designated persons set forth in
22
Section II.1 of this Stipulated Protective Order. Such requirement is not applicable to the Court.
23
2.
Any motion or pleading containing Confidential Information, and any information,
24
including, but not limited to, documents, interrogatory responses and depositions designated as
25
containing Confidential Information, where submitted to the Court or an arbitrator, shall be
26
delivered to the Court or arbitrator sealed and not be available for public inspection. Counsel for
27
the respective Parties shall place any such pleadings, motions, or documents to be submitted to
28
the Court or arbitrator in an envelope marked “SEALED,” affix a copy of this Stipulated
9
PROTECTIVE ORDER
1
Protective Order to the documents, and deliver the documents directly to the clerk or secretary of
2
the Judge or arbitrator assigned to hear this matter. The Parties further agree that any
3
Confidential Information filed under seal with the Court shall be accompanied by an application
4
pursuant to Local Rule 79-5.1, to file such Confidential Information under seal. The application
5
shall be directed to the judge to whom the Confidential Information is directed. Pending a
6
judicial ruling on the application, the Confidential Information subject to the sealing application
7
shall be lodged under seal. Notwithstanding the provisions in this paragraph, the Parties agree to
8
maintain and file Confidential Information used in any arbitration proceeding pursuant to the
9
applicable rules of the American Arbitration Association or other rules governing the arbitration
10
proceeding.
11
3.
Documents or other information designated as containing Confidential Information
12
pursuant to this Stipulated Protective Order shall become public absent a separate Court order
13
upon written application and sufficient cause shown.
14
4.
Nothing in this Stipulation requires the Court or arbitrator to automatically grant a
15
request to file documents labeled “CONFIDENTIAL” under seal.
16
VI.
17
CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
1.
The terms of this Stipulated Protective Order shall apply to all manner and means
18
of discovery, including subpoenas duces tecum, and to this litigation and any related arbitration.
19
2.
In the event that a Party is served with a subpoena, related to another action or a
20
party not subject to this protective order, that seeks to compel the production of Material
21
designated as “CONFIDENTIAL,” the Party upon whom the subpoena is served shall give
22
written notice of the subpoena to the Designating Party at least seven (7) calendar days before the
23
production date (or, if the subpoena provides less than seven (7) days’ notice, within one (1)
24
business day after service of the subpoena). The Designating Party may then file a petition or
25
motion to quash the subpoena and/or obtain such other relief as will protect the confidential
26
nature of the documents. If the Designating Party files such a petition before the production date
27
specified in the subpoena, the Party upon whom the subpoena is served shall not produce the
28
10
PROTECTIVE ORDER
1
requested documents until after the Court or appropriate court has ruled on the petition or motion.
2
VII.
3
FINAL DISPOSITION
Within thirty (30) days after the final termination of this action, counsel for each Party
4
shall, except by the mutual agreement of the Parties, destroy any and all Material designated as
5
“CONFIDENTIAL,” and shall destroy all copies, digests or summaries which have been made of,
6
or prepared from, such Confidential Information, and shall provide counsel for the Party or Third-
7
Party who produced such Material (upon request) with a declaration under penalty of perjury
8
attesting to such return and/or destruction. For purposes of this Stipulated Protective Order, the
9
term “final termination” shall refer to the time after any final order, award, or judgment is entered
10
in this action, or any related arbitration, with no timely petition for reconsideration or petition for
11
review having been filed, or, if any such petition is filed, after a final decision is rendered by the
12
United States District Court or any appellate court with no further petition or appeal pending or
13
possible.
14
VIII. MISCELLANEOUS
15
1.
Subject to the Provision of Paragraph VI(2), above, nothing in this Stipulated
16
Protective Order shall be construed to relieve any Party from the obligation to timely respond to a
17
discovery request, nor shall this Stipulated Protective Order be construed as a waiver of the right
18
to assert any objection to a discovery request.
19
2.
Nothing in this Stipulated Protective Order is intended to be nor shall it be
20
construed as a waiver of any Party’s right to move to dismiss or compel arbitration of Plaintiffs’
21
claims on the grounds that such claims are subject to mandatory arbitration.
22
3.
This Stipulated Protective Order is intended to regulate the production and
23
dissemination of Confidential Information during the entirety of this action and any related
24
arbitration, and thereafter shall remain in full force and effect, unless and until modified,
25
superseded or terminated by written agreement of all Parties or by order of the United States
26
District Court. This Stipulated Protective Order shall become effective as among the Parties
27
when executed by all Parties, with or without the District Court’s entry of the order. The Court
28
shall retain jurisdiction to enforce the provisions of this Stipulated Protective Order and to enter
11
PROTECTIVE ORDER
1
amendments, modifications and additions to this Stipulated Protective Order as the Court may
2
from time to time deem appropriate upon noticed motion of a Party or upon the Court’s own
3
motion upon notice to the parties.
4
4.
Nothing in this Stipulated Protective Order shall affect the admissibility into
5
evidence of Confidential Materials, or abridge the rights of any person to seek judicial review or
6
to pursue other appropriate judicial action with respect to any ruling made by the Court
7
concerning the issue of the status of Confidential Material.
8
9
5.
Counsel for all parties shall make every attempt to redact exhibits for use at trial as
opposed to marking such exhibits “CONFIDENTIAL” so as to reduce the burden of sealing the
10
Court during trial. The Court reiterates that the mere marking of documents as
11
“CONFIDENTIAL” does not guarantee that such documents will be filed under seal during
12
trial. Rather, the parties must meet the heightened standard set forth above to have
13
documents filed under seal at trial.
14
6.
Counsel for all parties shall make every attempt to redact personal identifying
15
information from documents produced in this proceeding or in any related arbitration, including
16
but not limited to social security numbers, dates of birth, financial account numbers, passport
17
numbers, drivers license numbers, home addresses, and any other personal information required
18
to be redacted in accordance with Federal Rule of Civil Procedure 5.2 or Local Rule 5.2-1.
19
7.
Nothing in this Stipulated Protective Order shall be construed as improperly
20
limiting the rights of third parties involved in other actions to conduct discovery or to limit the
21
subpoena power of another court unless a Court grants a properly noticed motion for protective
22
order in such other proceedings.
23
24
IT IS SO ORDERED.
25
DATED: June 02, 2015
26
27
__________________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
28
12
PROTECTIVE ORDER
1
EXHIBIT “A”
2
3
I, ________________________________, have received and reviewed a copy of the Stipulated
4
Protective Order entered in the case entitled Oak Tree Racing Association v. Service Employees
5
International Union National Industry Fund, et al., Case No. 2:14-cv-4207 PSG (RZx) pending in
6
the United States District Court for the Central District of California (“USCD”) and am familiar
7
with its terms. I agree to comply with the terms and conditions of the Stipulated Protective Order
8
unless and until I am notified that it has been modified or vacated by the Court, at which time I
9
will comply with such further order. I further consent and submit to the jurisdiction of the USCD
10
11
for the purpose of enforcing the Stipulated Protective Order, if necessary.
DATED:
____________________________________
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
PROTECTIVE ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?