Carlos Marsh v. Los Angeles Department of Transportation et al

Filing 19

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh 17 . SEE ORDER. (im)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Carlos Marsh,

DISCOVERY MATTER

Plaintiff,

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Case No. CV 15-6551-GW(PJWx)

v.

Protective Order

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Los Angeles Department of
Transportation; MV
Transportation, Inc.; and Does 110, Inclusive,

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Defendants.

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By agreement of the parties hereto, pursuant to the Joint Stipulation

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filed concurrently herewith, and for good cause shown, it is hereby

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ORDERED:

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1.

A. PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this

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[Proposed] Stipulated Protective Order

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litigation may be warranted. Accordingly, the parties hereby stipulate to

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and petition the Court to enter the following Stipulated Protective Order.

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The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the

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limited information or items that are entitled to confidential treatment under

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the applicable legal principles. The parties further acknowledge, as set

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forth in Section 12.3, below, that this Stipulated Protective Order does not

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entitle them to file confidential information under seal; Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will

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be applied when a party seeks permission from the court to file material

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under seal.

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B. GOOD CAUSE STATEMENT

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This action is likely to involve information: (1) regarding or relating to

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the medical condition or ability of Plaintiff Carlos Marsh; and (2) regarding

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or relating to the contents of Defendants’ employee personnel files.

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Special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted. Such confidential

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materials and information consist of, among other things, medical records,

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summaries

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information; and information otherwise generally unavailable to the public,

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or which may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law.

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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential,

and

information;

disciplinary

records,

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[Proposed] Stipulated Protective Order

summaries

and

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to ensure that the parties are permitted reasonable necessary uses of such

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material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a

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protective order for such information is justified in this matter. It is the intent

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of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith

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belief that it has been maintained in a confidential, non-public manner, and

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there is good cause why it should not be part of the public record of this

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case.

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2.

DEFINITIONS
2.1

Action: the federal lawsuit filed by Plaintiff Carlos Marsh

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against Los Angeles Department of Transportation; MV Transportation,

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Inc.; on August 27, 2015 in the Central District of California and reflecting

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case number 2:15-cv-06551-GW-PJW.

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2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL”

Information

or

Items:

information

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(regardless of how it is generated, stored or maintained) or tangible things

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that qualify for protection under Federal Rule of Civil Procedure 26(c), and

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as specified above in the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as

well as their support staff).
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Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to

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discovery as “CONFIDENTIAL.”

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[Proposed] Stipulated Protective Order

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2.6

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in

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a matter pertinent to the litigation who has been retained by a Party or its

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counsel to serve as an expert witness or as a consultant in this Action.

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2.8

House Counsel: attorneys who are employees of a party to

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this Action. House Counsel does not include Outside Counsel of Record or

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any other outside counsel.

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2.9

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

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

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2.10 Outside Counsel of Record: attorneys who are not employees

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of a party to this Action but are retained to represent or advise a party to

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this Action and have appeared in this Action on behalf of that party or are

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affiliated with a law firm which has appeared on behalf of that party, and

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includes support staff.

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2.11 Party: any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel

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of Record (and their support staffs).

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2.12 Producing Party: a Party or Non-Party that produces
Disclosure or Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing

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exhibits or demonstrations, and organizing, storing, or retrieving data in

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any form or medium) and their employees and subcontractors.

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[Proposed] Stipulated Protective Order

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2.14 Protected Material: any Disclosure or Discovery Material that
is designated as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not

only

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Protected Material (as defined above), but also (1) any information copied

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or extracted from Protected Material; (2) all copies, excerpts, summaries,

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or

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conversations, or presentations by Parties or their Counsel that might

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reveal Protected Material.

compilations

of

Protected

Material;

and

(3)

any

testimony,

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Any use of Protected Material at trial shall be governed by the orders

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of the trial judge. This Order does not govern the use of Protected Material

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at trial.

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4.

DURATION

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Once a case proceeds to trial, all of the information that was

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designated as confidential or maintained pursuant to this protective order

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becomes public and will be presumptively available to all members of the

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public, including the press, unless compelling reasons supported by

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specific factual findings to proceed otherwise are made to the trial judge in

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advance of the trial. See Kamakana v. City and County of Honolulu, 447

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F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing

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for sealing documents produced in discovery from “compelling reasons”

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[Proposed] Stipulated Protective Order

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standard when merits-related documents are part of court record).

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Accordingly, the terms of this protective order do not extend beyond the

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commencement of the trial.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items

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for protection under this Order must take care to limit any such designation

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to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of

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material, documents, items, or oral or written communications that qualify

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so

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communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

that

other

portions

of

the

material,

documents,

items,

or

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been

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made for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on

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other parties) may expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or

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items that it designated for protection do not qualify for protection, that

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Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise

provided in this Order (see, e.g., second paragraph of section 5.2(a)

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[Proposed] Stipulated Protective Order

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below), or as otherwise stipulated or ordered, Disclosure or Discovery

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Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page

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that contains protected material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in

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the margins).

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A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the inspecting

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Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this order.

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producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g.,

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by making appropriate markings in the margins).

then, before

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(b) for testimony given in depositions that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the

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close of the deposition all protected testimony.

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[Proposed] Stipulated Protective Order

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(c) for

information

produced

in

some

form

other

than

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documentary and for any other tangible items, that the Producing Party

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affix in a prominent place on the exterior of the container or containers in

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which the information is stored the legend “CONFIDENTIAL.” If only a

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portion or portions of the information warrants protection, the Producing

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Party, to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not,

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standing alone, waive the Designating Party’s right to secure protection

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under this Order for such material. Upon timely correction of a designation,

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the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge

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a designation of confidentiality at any time that is consistent with the

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Court’s Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the

dispute resolution process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding

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shall be on the Designating Party. Frivolous challenges, and those made

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for an improper purpose (e.g., to harass or impose unnecessary expenses

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and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the challenge.

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[Proposed] Stipulated Protective Order

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a Non-Party

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in connection with this Action only for prosecuting, defending, or attempting

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to settle this Action. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order.

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When the Action has been terminated, a Receiving Party must comply with

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the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is

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limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to whom it

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is reasonably necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably

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necessary for this Action;

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(c) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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[Proposed] Stipulated Protective Order

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this

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Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g) the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or

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knew the information;

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(h) during their depositions, witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary

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provided: (1) the deposing party requests that the witness sign the form

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attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any

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confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be

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separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order; and

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(i) any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in

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settlement discussions.

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8.

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PRODUCED IN OTHER LITIGATION

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in

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this Action as “CONFIDENTIAL,” that Party must:

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[Proposed] Stipulated Protective Order

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(a) promptly notify in writing the Designating Party. Such
notification shall include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena

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or order to issue in the other litigation that some or all of the material

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covered by the subpoena or order is subject to this Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought

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to be pursued by the Designating Party whose Protected Material may be

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affected. If the Designating Party timely seeks a protective order, the Party

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served with the subpoena or court order shall not produce any information

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designated in this action as “CONFIDENTIAL” before a determination by

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the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed

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as authorizing or encouraging a Receiving Party in this Action to disobey a

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lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)

The terms of this Order are applicable to information

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produced

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“CONFIDENTIAL.”

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connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

by

a

Non-Party
Such

in

this

information

Action
produced

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[Proposed] Stipulated Protective Order

and
by

designated

as

Non-Parties

in

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(b) In the event that a Party is required, by a valid discovery

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request, to produce a Non-Party’s confidential information in its

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possession, and the Party is subject to an agreement with the Non-Party

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not to produce the Non-Party’s confidential information, then the Party

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shall:

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(1) 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;

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(2) promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery

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request(s), and a reasonably specific description of the information

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requested; and

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(3) make the information requested available for inspection
by the Non-Party, if requested.

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(c) If the Non-Party fails to seek a protective order from this

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

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

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responsive to the discovery request. If the Non-Party timely seeks a

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protective order, the Receiving Party shall not produce any information in

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its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court

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order to the contrary, the Non-Party shall bear the burden and expense of

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seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not

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[Proposed] Stipulated Protective Order

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authorized under this Stipulated Protective Order, the Receiving Party

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must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all

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unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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11.

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PROTECTED MATERIAL

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

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certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in

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Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended

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to modify whatever procedure may be established in an e-discovery order

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that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an

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agreement on the effect of disclosure of a communication or information

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covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right

of any person to seek its modification by the Court in the future.

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[Proposed] Stipulated Protective Order

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12.2 Right to Assert Other Objections. By stipulating to the entry of

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this Protective Order no Party waives any right it otherwise would have to

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object to disclosing or producing any information or item on any ground not

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addressed in this Stipulated Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a court order authorizing

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the sealing of the specific Protected Material at issue. If a Party's request

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to file Protected Material under seal is denied by the court, then the

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Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4,

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within 60 days of a written request by the Designating Party, each

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Receiving Party must return all Protected Material to the Producing Party

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or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material.

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Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not

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the same person or entity, to the Designating Party) by the 60 day deadline

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that (1) identifies

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(by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2)affirms that the Receiving Party has not

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[Proposed] Stipulated Protective Order

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retained any copies, abstracts, compilations, summaries or any other

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format

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Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject

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to this Protective Order as set forth in Section 4 (DURATION).

reproducing

or

capturing

any

of

the

Protected

Material.

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11

14.

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appropriate measures including, without limitation, contempt proceedings

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and/or monetary sanctions.

Any violation of this Order may be punished by any and all

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DATED: November 9, 2015

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_____________________________

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Hon. Patrick J. Walsh

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United States Magistrate Judge

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[Proposed] Stipulated Protective Order

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

________________________

[print

or

type

full

name],

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of__________________________

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under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District

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Court for the Central District of California on ______ in the case of Carlos

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Marsh

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Transportation, Inc., Case No.: 2:15-cv-06551-GW-PJW. I agree to comply

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with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose

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me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that

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is subject to this Stipulated Protective Order to any person or entity except

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in strict compliance with the provisions of this Order.

v.

Los

Angeles

[print or type full address], declare

Department

of

Transportation

and

MV

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I further agree to submit to the jurisdiction of the United States

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

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enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action. I hereby

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appoint __________________________ [print or type full name] of

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___________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with

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[Proposed] Stipulated Protective Order

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this action or any proceedings related to enforcement of this Stipulated

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Protective Order.

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Date: ______________________________________

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City and State where sworn and signed:

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_____________________________

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Printed name: _______________________________

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Signature: __________________________________

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[Proposed] Stipulated Protective Order