Jeri Farrar v. Catalina Restaurant Group, Inc. et al

Filing 73

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 72 . (See Order for details) [Note Changes Made By The Court]. (bem)

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1 2 3 4 5 Jeff R. Dingwall (SBN 265432) EIGHT & SAND 110 W C Street, Suite 1903 San Diego, California 92101 Tel: (619) 796-3464 Fax: (619) 717-8762 NOTE: CHANGES MADE BY THE COURT 6 7 8 9 10 11 12 Trang Q. Tran (Texas Bar No. 00795787) TRAN LAW FIRM L.L.P Federal I.D: 20361 2537 S. Gessner Street, Suite 104 Houston, Texas 77063 Tel: (713) 223-8855 Fax: (713) 623-6399 Attorneys for Plaintiffs 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 17 JERI FARRAR, KYLE WHITNEY, GARY GRAHAM, BILL DIZON, FRANCISCO JIMENEZ, AND GINA MCMAHON, 18 Plaintiffs, 19 20 21 Case No. 2:16-cv-09066-DDP-JPRx STIPULATED PROTECTIVE ORDER v. CATALINA RESTAURANT GROUP, INC., and FOOD MANAGEMENT PARTNERS, INC., 22 Defendants. 23 24 25 26 1. A. PURPOSES AND LIMITATIONS As discovery in this action is likely to involve production of confidential, 27 28 proprietary, or private information for which special protection from public 1 disclosure and from use for any purpose other than prosecuting this litigation may 2 be warranted, the parties hereby stipulate to and petition the Court to enter the 3 following Stipulated Protective Order. The parties acknowledge this Order does not 4 5 confer blanket protections on all disclosures or responses to discovery. 6 protection it affords from public disclosure and use extends only to the limited 7 The information or items that are entitled to confidential treatment under the applicable 8 9 legal principles. Further, as set forth in Section 12.3, below, this Protective Order 10 does not entitle the parties to file confidential information under seal. Rather, when 11 the parties seek permission from the court to file material under seal, the parties 12 13 must comply with Civil Local Rule 79-5 and with any pertinent orders of the 14 assigned District Judge and Magistrate Judge. 15 B. GOOD CAUSE STATEMENT 16 17 18 In light of the nature of the claims and allegations in this case and the parties’ representations that discovery in this case will involve the production of confidential 19 records, and in order to expedite the flow of information, to facilitate the prompt 20 21 resolution of disputes over confidentiality of discovery materials, to adequately 22 protect information the parties are entitled to keep confidential, to ensure that the 23 24 parties are permitted reasonable necessary uses of such material in connection with 25 this action, to address their handling of such material at the end of the litigation, and 26 to serve the ends of justice, a protective order for such information is justified in this 27 28 matter. The parties shall not designate any information/documents as confidential 2 1 without a good faith belief that such information/documents have been maintained 2 in a confidential, non-public manner, and that there is good cause or a compelling 3 reason why it should not be part of the public record of this case. 4 5 6 7 2. DEFINITIONS 2.1 Action: The above-captioned action. 2.2 Challenging Party: a Party or Non-Party that challenges the 8 9 10 11 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for 12 13 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 14 the Good Cause Statement. 15 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 16 17 18 their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 21 22 “CONFIDENTIAL.” 2.6 Disclosure or Discovery Material: all items or information, regardless 23 24 of the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced or 26 generated in disclosures or responses to discovery in this matter. 27 28 3 1 2 3 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action. 4 5 6 7 2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 8 9 10 11 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a 12 13 party to this Action but are retained to represent or advise a party to this Action and 14 have appeared in this Action on behalf of that party or are affiliated with a law firm 15 which has appeared on behalf of that party, and includes support staff. 16 17 2.11 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and Outside Counsel of Record (and their 19 support staffs). 20 21 22 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 23 24 2.13 Professional Vendors: persons or entities that provide litigation 25 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 26 demonstrations, and organizing, storing, or retrieving data in any form or medium) 27 28 and their employees and subcontractors. 4 2.14 Protected Material: 1 2 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 3 2.15 Receiving Party: a Party that receives Disclosure or Discovery 4 5 Material from a Producing Party. 6 3. 7 SCOPE The protections conferred by this Order cover not only Protected Material (as 8 9 defined above), but also (1) any information copied or extracted from Protected 10 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 11 and (3) any deposition testimony, conversations, or presentations by Parties or their 12 13 Counsel that might reveal Protected Material, other than during a court hearing or at 14 trial. 15 Any use of Protected Material during a court hearing or at trial shall be 16 17 governed by the orders of the presiding judge. This Order does not govern the use 18 of Protected Material during a court hearing or at trial. 19 4. DURATION 20 21 Even after final disposition of this litigation, the confidentiality obligations 22 imposed by this Order shall remain in effect until a Designating Party agrees 23 24 otherwise in writing or a court order otherwise directs. Final disposition shall be 25 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 26 or without prejudice; and (2) final judgment herein after the completion and 27 28 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 5 1 including the time limits for filing any motions or applications for extension of time 2 pursuant to applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5 6 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that 8 9 qualifies under the appropriate standards. The Designating Party must designate for 10 protection only those parts of material, documents, items, or oral or written 11 communications that qualify so that other portions of the material, documents, 12 13 items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this Order. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations 16 17 that are shown to be clearly unjustified or that have been made for an improper 18 purpose (e.g., to unnecessarily encumber the case development process or to impose 19 unnecessary expenses and burdens on other parties) may expose the Designating 20 21 22 Party to sanctions. If it comes to a Designating Party’s attention that information or items that it 23 24 25 26 designated for protection do not qualify for protection, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in 27 28 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 6 1 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 2 under this Order must be clearly so designated before the material is disclosed or 3 produced. 4 5 Designation in conformity with this Order requires: 6 7 (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions), that the Producing Party affix 8 9 at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 10 legend”), to each page that contains protected material. If only a portion or portions 11 of the material on a page qualifies for protection, the Producing Party also must 12 13 clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15 A Party or Non-Party that makes original documents available for inspection 16 17 need not designate them for protection until after the inspecting Party has indicated 18 which documents it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be 20 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 22 documents it wants copied and produced, the Producing Party must determine which 23 24 documents, or portions thereof, qualify for protection under this Order. Then, before 25 producing the specified documents, the Producing Party must affix the 26 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 27 28 portion or portions of the material on a page qualifies for protection, the Producing 7 1 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). 3 (b) for testimony given in depositions that the Designating Party identifies 4 5 on the record, before the close of the deposition as protected testimony. 6 7 (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on 8 9 the exterior of the container or containers in which the information is stored the 10 legend “CONFIDENTIAL.” If only a portion or portions of the information 11 warrants protection, the Producing Party, to the extent practicable, shall identify the 12 13 protected portion(s). 14 15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive 16 17 the Designating Party’s right to secure protection under this Order for such material. 18 Upon timely correction of a designation, the Receiving Party must make reasonable 19 efforts to assure that the material is treated in accordance with the provisions of this 20 21 Order. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 24 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 25 designation of confidentiality at any time that is consistent with the Court’s 26 Scheduling Order. 27 28 8 6.2 1 2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37-1 et seq. 3 6.3 The burden of persuasion in any such challenge proceeding shall be on 4 5 the Designating Party. Frivolous challenges, and those made for an improper 6 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 7 parties) may expose the Challenging Party to sanctions. Unless the Designating 8 9 Party has waived or withdrawn the confidentiality designation, all parties shall 10 continue to afford the material in question the level of protection to which it is 11 entitled under the Producing Party’s designation until the Court rules on the 12 13 challenge. 14 7. 15 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 16 17 disclosed or produced by another Party or by a Non-Party in connection with this 18 Action only for prosecuting, defending, or attempting to settle this Action. Such 19 Protected Material may be disclosed only to the categories of persons and under the 20 21 conditions described in this Order. When the Action has been terminated, a 22 Receiving Party must comply with the provisions of Section 13 below. 23 24 Protected Material must be stored and maintained by a Receiving Party at a 25 location and in a secure manner that ensures that access is limited to the persons 26 authorized under this Order. 27 28 9 1 2 3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated 4 5 6 7 “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees of said Outside Counsel of Record to whom it is reasonably 8 9 10 11 necessary to disclose the information for this Action; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 12 13 (c) Experts (as defined in this Order) of the Receiving Party to whom 14 disclosure is reasonably necessary for this Action and who have signed the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 17 (d) the court and its personnel; 18 (e) court reporters and their staff; 19 (f) professional jury or trial consultants, mock jurors, and Professional 20 21 Vendors to whom disclosure is reasonably necessary for this Action and who have 22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 24 25 26 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses, and attorneys for witnesses, in the 27 28 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 10 1 requests that the witness sign the “Acknowledgment and Agreement to Be Bound” 2 form attached as Exhibit A hereto; and (2) they will not be permitted to keep any 3 confidential information unless they sign the “Acknowledgment and Agreement to 4 5 Be Bound” attached as Exhibit A, unless otherwise agreed by the Designating Party 6 or ordered by the court. Pages of transcribed deposition testimony or exhibits to 7 depositions that reveal Protected Material may be separately bound by the court 8 9 10 reporter and may not be disclosed to anyone except as permitted under this Protective Order; and 11 (i) any mediator or settlement officer, and their supporting personnel, 12 13 mutually agreed upon by any of the parties engaged in settlement discussions or 14 appointed by the Court. 15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 16 17 18 IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation 19 that compels disclosure of any information or items designated in this Action as 20 21 22 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 23 24 shall include a copy of the subpoena or court order unless prohibited by law; 25 (b) promptly notify in writing the party who caused the subpoena or order 26 to issue in the other litigation that some or all of the material covered by the 27 28 subpoena or order is subject to this Protective Order. Such notification shall include 11 1 a copy of this Protective Order; and 2 3 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 4 5 If the Designating Party timely seeks a protective order, the Party served with 6 the subpoena or court order shall not produce any information designated in this 7 action as “CONFIDENTIAL” before a determination by the court from which the 8 9 subpoena or order issued, unless the Party has obtained the Designating Party’s 10 permission, or unless otherwise required by the law or court order. The Designating 11 Party shall bear the burden and expense of seeking protection in that court of its 12 13 confidential material and nothing in these provisions should be construed as 14 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 15 directive from another court. 16 17 9. A NON-PARTY’S PROTECTED 18 MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a 20 21 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 22 produced by Non-Parties in connection with this litigation is protected by the 23 24 25 26 remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to 27 28 produce a Non-Party’s confidential information in its possession, and the Party is 12 1 subject to an agreement with the Non-Party not to produce the Non-Party’s 2 confidential information, then the Party shall: 3 (1) promptly notify in writing the Requesting Party and the Non-Party 4 5 that some or all of the information requested is subject to a confidentiality 6 agreement with a Non-Party; 7 (2) promptly provide the Non-Party with a copy of the Protective 8 9 10 11 Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and (3) make the information requested available for inspection by the 12 13 14 15 Non-Party, if requested. (c) If a Non-Party represented by counsel fails to commence the process called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the 16 17 notice and accompanying information or fails contemporaneously to notify the 18 Receiving Party that it has done so, the Receiving Party may produce the Non- 19 Party’s confidential information responsive to the discovery request. If an 20 21 unrepresented Non-Party fails to seek a protective order from this court within 14 22 days of receiving the notice and accompanying information, the Receiving Party 23 24 may produce the Non-Party’s confidential information responsive to the discovery 25 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 26 not produce any information in its possession or control that is subject to the 27 28 confidentiality agreement with the Non-Party before a determination by the court 13 1 unless otherwise required by the law or court order. Absent a court order to the 2 contrary, the Non-Party shall bear the burden and expense of seeking protection in 3 this court of its Protected Material. 4 5 10. 6 7 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this 8 9 Protective Order, the Receiving Party must immediately (a) notify in writing the 10 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 11 all unauthorized copies of the Protected Material, (c) inform the person or persons to 12 13 whom unauthorized disclosures were made of all the terms of this Order, and (d) 14 request such person or persons to execute the “Acknowledgment and Agreement to 15 Be Bound” that is attached hereto as Exhibit A. 16 17 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 18 PROTECTED MATERIAL 19 When a Producing Party gives notice to Receiving Parties that certain 20 21 inadvertently produced material is subject to a claim of privilege or other protection, 22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 23 24 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 25 may be established in an e-discovery order that provides for production without 26 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 27 28 as the parties reach an agreement on the effect of disclosure of a communication or 14 1 information covered by the attorney-client privilege or work product protection, the 2 parties may incorporate their agreement into this Protective Order provided the 3 Court so allows. 4 5 12. 6 7 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. 8 9 12.2 Right to Assert Other Objections. No Party waives any right it 10 otherwise would have to object to disclosing or producing any information or item 11 on any ground not addressed in this Protective Order. Similarly, no Party waives 12 13 any right to object on any ground to use in evidence of any of the material covered 14 by this Protective Order. 15 12.3 Filing Protected Material. A Party that seeks to file under seal any 16 17 Protected Material must comply with Civil Local Rule 79-5 and with any pertinent 18 orders of the assigned District Judge and Magistrate Judge. If a Party's request to 19 file Protected Material under seal is denied by the court, then the Receiving Party 20 21 may file the information in the public record unless otherwise instructed by the 22 court. 23 24 13. FINAL DISPOSITION 25 After the final disposition of this Action, as defined in Section 4, within 60 26 days of a written request by the Designating Party, each Receiving Party must return 27 28 all Protected Material to the Producing Party or destroy such material. As used in 15 1 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 2 summaries, and any other format reproducing or capturing any of the Protected 3 Material. Whether the Protected Material is returned or destroyed, the Receiving 4 5 Party must submit a written certification to the Producing Party (and, if not the same 6 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 7 (by category, where appropriate) all the Protected Material that was returned or 8 9 destroyed and (2) affirms that the Receiving Party has not retained any copies, 10 abstracts, compilations, summaries or any other format reproducing or capturing any 11 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 12 13 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 14 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 15 reports, attorney work product, and consultant and expert work product, even if such 16 17 materials contain Protected Material. Any such archival copies that contain or 18 constitute Protected Material remain subject to this Protective Order as set forth in 19 Section 4. 20 21 14. Any violation of this Order may be punished by any and all appropriate 22 measures including, without limitation, contempt proceedings and/or monetary 23 24 sanctions. 25 26 27 28 16 1 2 3 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: 4 5 DATED: October 4, 2017 6 7 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. s/Marlene M. Moffitt Spencer C. Skeen Marlene M. Moffitt Tim L. Johnson Attorneys for Defendants CATALINA RESTAURANT GROUP, INC. and FOOD MANAGEMENT PARTNERS, INC. 8 9 10 11 12 13 DATED: October 4, 2017 14 EIGHT & SAND s/ Jeff R. Dingwall Jeff R. Dingwall 15 16 TRAN LAW FIRM L.L.P. Trang Q. Tran 17 18 ATTORNEYS FOR PLAINTIFFS 19 20 21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 22 23 DATED: October 16, 2017 24 25 26 _________________________ Honorable Jean P. Rosenbluth United States Magistrate Judge 27 28 17 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Protective Order that was issued 7 by the United States District Court for the Central District of California on 8 _________________________in the case of Jeri Farrar, et al. v. Catalina Restaurant 9 Group, Inc., et al., United States District Court for the Central District of California, 10 Case No. 16-cv-09066-DDP-JPRx . I agree to comply with and to be bound by all 11 the terms of this Protective Order and I understand and acknowledge that failure to 12 so comply could expose me to sanctions and punishment in the nature of contempt. I 13 solemnly promise that I will not disclose in any manner any information or item that 14 is subject to this Protective Order to any person or entity except in strict compliance 15 with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Protective Order, even if such enforcement proceedings occur after termination of 19 this action. I hereby appoint __________________________ [print or type full 20 name] of _______________________________________ [print or type full address 21 and telephone number] as my California agent for service of process in connection 22 with this action or any proceedings related to enforcement of this Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 18 SIGNATURE CERTIFICATION 1 2 3 4 5 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies and Procedures Manual, I hereby certify that the content of this document is acceptable to Marlene M. Moffitt, counsel for Defendants, and that I have 6 7 8 9 obtained Ms. Moffitt’s authorization to affix her electronic signature to this document. DATED: October 4, 2017 EIGHT & SAND 10 11 s/ Jeff R. Dingwall Jeff R. Dingwall 12 13 14 TRAN LAW FIRM L.L.P. Trang Q. Tran ATTORNEYS FOR PLAINTIFFS 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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