Robert Ricci v. Waste Management, Inc. et al

Filing 17

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Joint REQUEST for Protective Order for production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted 15 : (see attached) (jm)

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1 2 3 4 5 6 7 8 TODD B. SCHERWIN (SBN 239848) tscherwin@fisherphillips.com RAUL E. ZERMENO (SBN 260731) rzermeno@fisherphillips.com KAITLIN J. HANIGAN (SBN 305653) khanigan@fisherphillips.com FISHER & PHILLIPS LLP 444 S. Flower Street,, Suite 1500 Los Angeles, CA 90071 Telephone (213) 330-4500 Facsimile (213) 330-4501 Attorneys for Defendants WASTE MANAGEMENT, INC. and USA WASTE OF CALIFORNIA, INC. 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ROBERT RICCI Plaintiff, 13 14 15 16 Case No. 2:16-CV-01359-RGK-FFM vs. WASTE MANAGEMENT, INC., a corporation; USA WASTE OF CALIFORNIA, INC., a corporation; and DOES 1through 25, inclusive, DISCOVERY MATTER [PROPOSED] ORDER RE: STIPULATED PROTECTIVE ORDER Defendants. 17 Complaint Filed: January 13, 2016 Trial Date: March 28, 2017 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER RE: STIPULATED PROTECTIVE ORDER FPDOCS 32310248.1 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ROBERT RICCI 13 14 15 16 vs. Case No. 2:16-CV-01359-RGK-FFM Plaintiff, WASTE MANAGEMENT, INC., a corporation; USA WASTE OF CALIFORNIA, INC., a corporation; and DOES 1through 25, inclusive, DISCOVERY MATTER [PROPOSED] ORDER RE: STIPULATED PROTECTIVE ORDER Defendants. 17 Complaint Filed: January 13, 2016 Trial Date: March 28, 2017 18 19 1. A. PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, 21 proprietary, or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may 23 be warranted. Accordingly, the parties hereby stipulate to and petition the Court 24 to enter the following Stipulated Protective Order. The parties acknowledge that 25 this Order does not confer blanket protections on all disclosures or responses to 26 discovery and that the protection it affords from public disclosure and use extends 27 only to the limited information or items that are entitled to confidential treatment 28 1 under the applicable legal principles. The parties further acknowledge, as set forth 2 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 3 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 4 procedures that must be followed and the standards that will be applied when a 5 party seeks permission from the court to file material under seal. 6 B. GOOD CAUSE STATEMENT 7 USA WASTE OF CALIFORNIA, INC. (“USA WASTE”) contends that 8 this action is likely to involve private employee information for which special 9 protection from public disclosure and from use for any purpose other than 10 prosecution of this action is warranted. 11 information consists of, among other things, confidential employee information 12 (including information implicating privacy rights of third parties) concerning past 13 or current employees of USA WASTE or any related entities, and information 14 otherwise generally unavailable to the public, or which may be privileged or 15 otherwise protected from disclosure under state or federal statutes, court rules, 16 case decisions, or common law. 17 information, to facilitate the prompt resolution of disputes over confidentiality of 18 discovery materials, to adequately protect information the parties are entitled to 19 keep confidential, to ensure that the parties are permitted reasonable necessary 20 uses of such material in preparation for and in the conduct of trial, to address their 21 handling at the end of the litigation, and serve the ends of justice, a protective 22 order for such information is justified in this matter. It is the intent of the parties 23 that information will not be designated as confidential for tactical reasons and that 24 nothing be so designated without a good faith belief that it has been maintained in 25 a confidential, non-public manner, and there is good cause why it should not be 26 part of the public record of this case. 27 /// 28 Such confidential material and Accordingly, to expedite the flow of 1 /// 2 2. DEFINITIONS 3 2.1 Action: this pending federal law suit. 4 2.2 Challenging Party: 5 6 a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless 7 of how it is generated, stored or maintained) or tangible things that qualify for 8 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 9 the Good Cause Statement. 10 11 12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information 13 or items that it produces in disclosures or in responses to discovery as 14 “CONFIDENTIAL.” 15 2.6 Disclosure or Discovery Material: all items or information, 16 regardless of the medium or manner in which it is generated, stored, or 17 maintained (including, among other things, testimony, transcripts, and tangible 18 things), that are produced or generated in disclosures or responses to discovery in 19 this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a 21 matter pertinent to the litigation who has been retained by a Party or its counsel to 22 serve as an expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this 24 Action. House Counsel does not include Outside Counsel of Record or any other 25 outside counsel. 26 2.9 27 28 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 1 2.10 Outside Counsel of Record: attorneys who are not employees of a 2 party to this Action but are retained to represent or advise a party to this Action 3 and have appeared in this Action on behalf of that party or are affiliated with a 4 law firm which has appeared on behalf of that party, and includes support staff. 5 2.11 Party: any party to this Action, including all of its officers, directors, 6 employees, consultants, retained experts, and Outside Counsel of Record (and 7 their support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 9 Discovery Material in this Action. 2.13 Professional Vendors: 10 persons or entities that provide litigation 11 support services (e.g., photocopying, videotaping, translating, preparing exhibits 12 or demonstrations, and organizing, storing, or retrieving data in any form or 13 medium) and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 14 15 designated as “CONFIDENTIAL.” 2.15 Receiving Party: 16 a Party that receives Disclosure or Discovery 17 Material from a Producing Party. 18 3. SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 24 25 trial judge. This Order does not govern the use of Protected Material at trial. 26 4. 27 28 DURATION 1 Even after final disposition of this litigation, the confidentiality obligations 2 imposed by this Order shall remain in effect until a Designating Party agrees 3 otherwise in writing or a court order otherwise directs. Final disposition shall be 4 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 5 without or without prejudice; and (2) final judgment herein after the completion 6 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 7 Action, including the time limits for filing any motions or applications for 8 extension of time pursuant to applicable law. 9 5. 10 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for 11 Protection. 12 Each Party or Non-Party that designates information or items for protection under 13 this Order must take care to limit any such designation to specific material that 14 qualifies under the appropriate standards. The Designating Party must designate 15 for protection only those parts of material, documents, items, or oral or written 16 communications that qualify so that other portions of the material, documents, 17 items, or communications for which protection is not warranted are not swept 18 unjustifiably within the ambit of this Order. 19 Mass, indiscriminate, or routinized designations are prohibited. 20 Designations that are shown to be clearly unjustified or that have been made for 21 an improper purpose (e.g., to unnecessarily encumber the case development 22 process or to impose unnecessary expenses and burden on other parties) may 23 expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that 25 it designated for protection do not qualify for protection, that Designating Party 26 must promptly notify all other Parties that it is withdrawing the inapplicable 27 designation. 28 1 5.2 Manner and Timing of Designations. Except as otherwise provided 2 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for 4 protection under this Order must be clearly so designated before the material is 5 disclosed or produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 11 contains protected material. If only a portion or portions of the material on a page 12 qualifies for protection, the Producing Party also must clearly identify the 13 protected portion(s) (e.g., by making appropriate markings in the margins). 14 A Party or Non-Party that makes original documents available for 15 inspection need not designate them for protection until after the inspecting Party 16 has indicated which documents it would like copied and produced. During the 17 inspection and before the designation, all of the material made available for 18 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 19 identified the documents it wants copied and produced, the Producing Party must 20 determine which documents, or portions thereof, qualify for protection under this 21 Order. Then, before producing the specified documents, the Producing Party must 22 affix the “CONFIDENTIAL legend” to each page that contains Protected 23 Material. If only a portion or portions of the material on a page qualifies for 24 protection, the Producing Party also must clearly identify the protected portion(s) 25 (e.g., by making appropriate markings in the margins). 26 27 28 (b) 1 for testimony given in depositions that the Designating Party identify 2 the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. (c) 4 for information produced in some form other than documentary and 5 for any other tangible items, that the Producing Party affix in a prominent place 6 on the exterior of the container or containers in which the information is stored 7 the legend “CONFIDENTIAL.” If only a portion or portions of the information 8 warrants protection, the Producing Party, to the extent practicable, shall identify 9 the protected portion(s). 5.3 10 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive 12 the Designating Party’s right to secure protection under this Order for such 13 material. Upon timely correction of a designation, the Receiving Party must make 14 reasonable efforts to assure that the material is treated in accordance with the 15 provisions of this Order. 16 6. 17 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 21 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be 23 on the Designating Party. Frivolous challenges, and those made for an improper 24 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 25 parties) may expose the Challenging Party to sanctions. Unless the Designating 26 Party has waived or withdrawn the confidentiality designation, all parties shall 27 continue to afford the material in question the level of protection to which it is 28 1 entitled under the Producing Party’s designation until the Court rules on the 2 challenge. 3 7. 4 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that 5 is disclosed or produced by another Party or by a Non-Party in connection with 6 this Action only for prosecuting, defending, or attempting to settle this Action. 7 Such Protected Material may be disclosed only to the categories of persons and 8 under the conditions described in this Order. 9 terminated, a Receiving Party must comply with the provisions of section 13 When the Action has been 10 below (FINAL DISPOSITION). 11 Protected Material must be stored and maintained by a Receiving Party at a 12 location and in a secure manner that ensures that access is limited to the persons 13 authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 15 otherwise ordered by the court or permitted in writing by the Designating Party, a 16 Receiving 17 “CONFIDENTIAL” only to: 18 (a) Party may disclose any information or item designated the Receiving Party’s Outside Counsel of Record in this Action, as 19 well as employees of said Outside Counsel of Record to whom it is reasonably 20 necessary to disclose the information for this Action; 21 22 23 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 24 disclosure is reasonably necessary for this Action and who have signed the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 26 (d) the court and its personnel; 27 (e) court reporters and their staff; 28 (f) 1 professional jury or trial consultants, mock jurors, and Professional 2 Vendors to whom disclosure is reasonably necessary for this Action and who 3 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) 4 5 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) 6 during their depositions, witnesses, and attorneys for witnesses, in 7 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 8 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 9 they will not be permitted to keep any confidential information unless they sign 10 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 11 otherwise agreed by the Designating Party or ordered by the court. Pages of 12 transcribed deposition testimony or exhibits to depositions that reveal Protected 13 Material may be separately bound by the court reporter and may not be disclosed 14 to anyone except as permitted under this Stipulated Protective Order; and (i) 15 any mediator or settlement officer, and their supporting personnel, 16 mutually agreed upon by any of the parties engaged in settlement discussions. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 18 IN OTHER LITIGATION 19 If a Party is served with a subpoena or a court order issued in other 20 litigation that compels disclosure of any information or items designated in this 21 Action as “CONFIDENTIAL,” that Party must: 22 23 24 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or 25 order to issue in the other litigation that some or all of the material covered by the 26 subpoena or order is subject to this Protective Order. Such notification shall 27 include a copy of this Stipulated Protective Order; and 28 (c) 1 cooperate with respect to all reasonable procedures sought to be 2 pursued by the Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this 5 action as “CONFIDENTIAL” before a determination by the court from which the 6 subpoena or order issued, unless the Party has obtained the Designating Party’s 7 permission. The Designating Party shall bear the burden and expense of seeking 8 protection in that court of its confidential material and nothing in these provisions 9 should be construed as authorizing or encouraging a Receiving Party in this 10 Action to disobey a lawful directive from another court. 11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 12 PRODUCED IN THIS LITIGATION 13 (a) The terms of this Order are applicable to information produced by a 14 Non-Party in this Action and designated as “CONFIDENTIAL.” 15 information produced by Non-Parties in connection with this litigation is 16 protected by the remedies and relief provided by this Order. Nothing in these 17 provisions should be construed as prohibiting a Non-Party from seeking 18 additional protections. 19 (b) Such In the event that a Party is required, by a valid discovery request, to 20 produce a Non-Party’s confidential information in its possession, and the Party is 21 subject to an agreement with the Non-Party not to produce the Non-Party’s 22 confidential information, then the Party shall: 23 (1) promptly notify in writing the Requesting Party and the Non- 24 Party that some or all of the information requested is subject to a 25 confidentiality agreement with a Non-Party; 26 27 28 (2) 1 promptly provide the Non-Party with a copy of the Stipulated 2 Protective Order in this Action, the relevant discovery request(s), and a 3 reasonably specific description of the information requested; and 4 (c) If the Non-Party fails to seek a protective order from this court 5 within 14 days of receiving the notice and accompanying information, the 6 Receiving Party may produce the Non-Party’s confidential information 7 responsive to the discovery request. If the Non-Party timely seeks a protective 8 order, the Receiving Party shall not produce any information in its possession or 9 control that is subject to the confidentiality agreement with the Non-Party before 10 a determination by the court. Absent a court order to the contrary, the Non-Party 11 shall bear the burden and expense of seeking protection in this court of its 12 Protected Material. 13 /// 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has 16 disclosed Protected Material to any person or in any circumstance not authorized 17 under this Stipulated Protective Order, the Receiving Party must immediately (a) 18 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 19 best efforts to retrieve all unauthorized copies of the Protected Material, (c) 20 inform the person or persons to whom unauthorized disclosures were made of all 21 the terms of this Order, and (d) request such person or persons to execute the 22 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 23 Exhibit A. 24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 25 PROTECTED MATERIAL 26 When a Producing Party gives notice to Receiving Parties that certain 27 inadvertently produced material is subject to a claim of privilege or other 28 1 protection, the obligations of the Receiving Parties are those set forth in Federal 2 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 3 whatever procedure may be established in an e-discovery order that provides for 4 production without prior privilege review. Pursuant to Federal Rule of Evidence 5 502(d) and (e), insofar as the parties reach an agreement on the effect of 6 disclosure of a communication or information covered by the attorney-client 7 privilege or work product protection, the parties may incorporate their agreement 8 in the stipulated protective order submitted to the court. 9 12. 10 11 MISCELLANEOUS 12. 1 Right to Further Relief. Nothing in this Order abridges the right of a person to seek its modification by the Court in the future. 12 12.2 Right to Assert Other Objections. By stipulating to the entry of this 13 Protective Order no Party waives any right it otherwise would have to object to 14 disclosing or producing any information or item on any ground not addressed in 15 this Stipulated Protective Order. Similarly, no Party waives any right to object on 16 any ground to use in evidence of any of the material covered by this Protective 17 Order. 18 12. 3 Filing Protected Material. A Party that seeks to file under seal any 19 Protected Material must comply with Civil Local Rule 79-5. Protected Material 20 may only be filed under seal pursuant to a court order authorizing the sealing of 21 the specific Protected Material at issue. If a Party’s request to file Protected 22 Material under seal is denied by the court, then the Receiving Party may file the 23 information in the public record unless otherwise instructed by the court. 24 12.4 Confidential Nature of Documents Prior to Court’s Order. Any 25 documents produced by the Responding Party from October 24, 2016 until the 26 Court executes this Order shall be deemed confidential pursuant to the terms of 27 this agreement. 28 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 3 60 days of a written request by the Designating Party, each Receiving Party must 4 return all Protected Material to the Producing Party or destroy such material. As 5 used in this subdivision, “all Protected Material” includes all copies, abstracts, 6 compilations, summaries, and any other format reproducing or capturing any of 7 the Protected Material. Whether the Protected Material is returned or destroyed, 8 the Receiving Party must submit a written certification to the Producing Party 9 (and, if not the same person or entity, to the Designating Party) by the 60 day 10 deadline that (1) identifies (by category, where appropriate) all the Protected 11 Material that was returned or destroyed and (2)affirms that the Receiving Party 12 has not retained any copies, abstracts, compilations, summaries or any other 13 format reproducing or capturing any of the Protected Material. Notwithstanding 14 this provision, Counsel are entitled to retain an archival copy of all pleadings, 15 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 16 correspondence, deposition and trial exhibits, expert reports, attorney work 17 product, and consultant and expert work product, even if such materials contain 18 Protected Material. Any such archival copies that contain or constitute Protected 19 Material remain subject to this Protective Order as set forth in Section 4 20 (DURATION). 21 14. 22 measures including, without limitation, contempt proceedings and/or monetary 23 sanctions. 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 Any violation of this Order may be punished by any and all appropriate Dated: November 29, 2016 26 27 28 /S/FREDERICK F. MUMM The Hon. Frederick F. Mumm United States Magistrate Judge 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of 7 California on _____________ [date] in the case of Robert Ricci vs. Waste 8 Management, Inc., et al., 2:16-CV-01359-RGK-FFM. I agree to comply with 9 and to be bound by all the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I 12 will not disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict compliance 14 with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [print or type full name] of _______________________________________ 20 [print or type full address and telephone number] as my California agent for 21 service of process in connection with this action or any proceedings related to 22 enforcement of this Stipulated Protective Order. 23 24 Date: _______________ 25 City and State where sworn and signed: 26 Printed name: ________________________ 27 Signature: ___________________________ 28

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