Scott Miller v. Yucatan Foods, LP et al

Filing 18

STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 16 . (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SCOTT MILLER, an individual, on
behalf of himself, the general public and
those similarly situated;

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Plaintiff,

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CASE NO. CV 17-1470-DMG (GJSx)
STIPULATED PROTECTIVE
ORDER
Judge:
Magistrate:

Hon. Dolly M. Gee
Gail J. Standish

vs.

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YUCATAN FOODS, L.P.; and DOES
1-50;

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Defendants.

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1.

A.

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action is likely to involve
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. Accordingly, the parties
hereby stipulate (“Stipulation”) to and request that the Court enter the
following Stipulated Protective Order (“Order”). The parties acknowledge
that this Order does not confer blanket protections on all disclosures or
responses to discovery and that the protection it affords from public
STIPULATED PROTECTIVE ORDER

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disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The
parties further acknowledge, as set forth in Paragraph 12.4, below, that this
Order does not entitle them to file confidential information under seal; Civil
Local Rule 79-5 and General Order 62 set forth the procedures that must be
followed and the standards that will be applied when a party seeks permission
from the Court to file material under seal.
B.

GOOD CAUSE STATEMENT

This action is likely to involve trade secrets, customer and pricing lists
and other valuable research, development, commercial, financial, technical
and/or proprietary information for which special protection from public
disclosure and from use for any purpose other than prosecution of this action
is warranted. Such confidential and proprietary materials and information
consist of, among other things, confidential business or financial information,
information regarding confidential business practices, or other confidential
research, development, or commercial information (including information
implicating privacy rights of third parties), information otherwise generally
unavailable to the public, or which may be privileged or otherwise protected
from disclosure under state or federal statutes, court rules, case decisions, or
common law. Accordingly, to expedite the flow of information, to facilitate
the prompt resolution of disputes over confidentiality of discovery materials,
to adequately protect information the parties are entitled to keep confidential,
to ensure that the parties are permitted reasonable necessary uses of such
material in preparation for and in the conduct of trial, to address their
handling at the end of the litigation, and serve the ends of justice, a protective
order for such information is justified in this matter. It is the intent of the
parties that information will not be designated as confidential for tactical
reasons and that nothing be so designated without a good faith belief that it
STIPULATED PROTECTIVE ORDER

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has been maintained in a confidential, non-public manner, and there is good
cause why it should not be part of the public record of this case.
2.

DEFINITIONS
2.1

Action: This pending federal lawsuit, Scott Miller v. Yucatan

Foods, L.P., United State District Court, Central District of California,
2:17-cv-01470-DMG-GJS, and the state court lawsuit from which it was
removed, Scott Miller v. Yucatan Foods, L.P., Superior Court of the State
of California, County of Los Angeles, BC645421.
2.2

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

designation of information or items under this Order.
2.2

CONFIDENTIAL Information or Items: information

(regardless of how it is generated, stored or maintained) or tangible things
that qualify for protection under Federal Rule of Civil Procedure 26(c),
which may include:
(a)

Information that constitutes a trade secret in accordance

with Uniform Trade Secrets Act;
(b)

Non-public communications with regulators or other

governmental bodies that are protected from disclosure by statute or
regulation; and/or
(c)

Information, materials, and/or other documents reflecting

non-public business or financial strategies, and/or confidential competitive
information which, if disclosed, would result in competitive harm to the
disclosing party.
However, the protections conferred by this Order do not cover
the following information:
(a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after
its disclosure to a Receiving Party as a result of publication not involving a
STIPULATED PROTECTIVE ORDER

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violation of this Order, including becoming part of the public record
through trial or otherwise; and/or

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(b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a
source who obtained the information lawfully and under no obligation of
confidentiality to the Designating Party.
2.3

Counsel (without qualifier): Outside Counsel of Record and

In-House Counsel (as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates

information or items that it produces in disclosures or in responses to
discovery as “CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information,

regardless of the medium or manner in which it is generated, stored, or
maintained (including, among other things, testimony, transcripts, and
tangible things), that are produced or generated in disclosures or responses
to discovery in this matter, including but not limited to, answers to
interrogatories, responses to requests for production, responses to requests for
admission, and transcripts of depositions and hearings (or portions of such
transcripts).
2.6

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.
2.7

In-House Counsel: attorneys who are employees of a Party to

this Action. In-House Counsel does not include Outside Counsel of
Record or any other outside counsel.
2.8

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

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

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STIPULATED PROTECTIVE ORDER

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2.9

Outside Counsel of Record: attorneys who are not employees

of a party to this Action but are retained to represent or advise a party to
this Action and have appeared in this Action on behalf of that party or are
affiliated and/or associated with a law firm which has appeared on behalf
of that party, and their support staff.
2.10 Party: any party to this Action, including all of its officers,
directors, employees, Experts, and Outside Counsel of Record (and their
support staffs).
2.11 Producing Party: a Party or non-Party that produces Disclosure
or Discovery Material in this Action.
2.12 Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing
exhibits or demonstrations, and organizing, storing, or retrieving data in
any form or medium) to a Party and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that
is designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that received Disclosure or Discovery
Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not

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

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

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summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentation by Parties or their Counsel that might reveal

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Protected Material. Any use of Protected Material at trial shall be governed

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by the orders of the trial judge. This Order does not govern the use of

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Protected Material at trial.
STIPULATED PROTECTIVE ORDER

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DURATION

Even after final disposition of this litigation, the confidentiality
obligations imposed by this Order shall remain in effect until a Designating
Party agrees otherwise in writing or a court order otherwise directs. Final
disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final judgment
herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this Action, including the time limits for
filing any motions or applications for extension of time pursuant to
applicable law. For a period of six (6) months after final disposition of this
litigation, this Court will retain jurisdiction to enforce the terms of this
Order.
5.

DESIGNATING PROTECTED MATERIAL
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 qualifies under the appropriate standards. The
Designating Party must designate for protection only those parts of
material, documents, items, or oral or written communications that qualify
– so that other portions of the material, documents, items, or
communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order. Mass, indiscriminate, or
routinized designations are prohibited. Designations that are shown to be
clearly unjustified or have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process or to
impose unnecessary expenses and burdens on other parties) expose the
Designating Party to sanctions. If it comes to a Designating Party’s
attention that information or items that it designated for protection do not
STIPULATED PROTECTIVE ORDER

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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 this Order (see, e.g., Paragraph 5.2(b) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Order requires:
(a) For information in documentary form (e.g., paper or
electronic documents, but excluding transcripts of depositions or other
pretrial or trial proceedings), that the Producing Party affix the legend
“CONFIDENTIAL” to each page that contains protected material or to the
cover page of bound or grouped material. If only a portion or portions of
the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b) For testimony given in deposition or in other pretrial or
trial proceedings, that the Designating Party identify on the record, before
the close of the deposition, hearing, or other proceeding, or within thirty
(30) days of receipt of the deposition transcript from the court reporter
(“30-day period”) all protected testimony, Disclosure or Discovery
Material. The entire deposition transcript will be considered by the Parties
as “CONFIDENTIAL” during the 30-day period. After the 30-day period,
if no Party has designated some or all of that deposition transcript as
“CONFIDENTIAL” under this Protective Order, the entire deposition, or
those portions of the deposition not designated as confidential, will no
longer be considered confidential.

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STIPULATED PROTECTIVE ORDER

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(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 the exterior of the container or containers in
which the information or item is stored the legend “CONFIDENTIAL.” If
only a portion or portions of the information or item warrant protection, the
Producing Party, to the extent practicable, shall identify the protected
portion(s). For any information transmitted by electronic means, the label
“CONFIDENTIAL” shall appear on the subject of the electronic mail, or
on the title of the digital document or documents or other media through
which they are conveyed.

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5.3

Inadvertent Failures to Designate. If timely corrected, an

inadvertent failure to designate qualified information or items does not,
standing alone, waive the Designating Party’s right to secure protection
under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure
that the material is treated in accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

a designation of confidentiality at any time that is consistent with the
Court’s Scheduling Order.
6.2

Meet and Confer. The Challenging Party shall initiate the

dispute resolution process under Local Rule 37-1 et seq.
6.3

Judicial Intervention. If the Meet and Confer does not resolve

the Parties’ dispute as to the at-issue designations, the challenge may be
submitted to the Court via a joint stipulation pursuant to Local Rule 37-2.
The burden of proving the confidentiality of designated persuasion in any
such challenge proceeding shall be on the Designating Party. Frivolous
challenges, and those made for an improper purpose (e.g., to harass or
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impose unnecessary expenses and burdens on the other parties) may expose
the Challenging Party to sanctions. Unless the Designating Party has
expressly waived the confidentiality designation or until the court has ruled
on the disputed at-issue designation, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the
Producing Party’s designation until the Court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

Material that is disclosed or produced by another Party or by a Non-Party
in connection with this case only for prosecuting, defending, or attempting
to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order.
When the litigation has been terminated, a Receiving Party must comply
with the provisions of paragraph 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
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 “CONFIDENTIAL” only to the following individuals under the
following conditions:
(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 necessary to disclose the information for this litigation;
(b) The Parties and the directors, officers, and employees
(including In-House Counsel) who are assisting with or making decisions
concerning this Action, only to the extent deemed reasonably necessary by
STIPULATED PROTECTIVE ORDER

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the Receiving Party’s Outside Counsel of Record for the purpose of
assisting in the prosecution or defense of the Action for use in accordance
with this Protective Order;
(c) Experts (as defined in this Order) of the Producing Party
may be shown or examined on any information, document or thing
designated “CONFIDENTIAL” by the Producing Party;
(d) Experts of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the Court and its personnel;
(e) court reporters and their staff, professional jury or trial
consultants, mock jurors, and Professional Vendors to whom disclosure is
reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) any deponent may be shown or examined on any
information, document or thing designated “CONFIDENTIAL” if it
appears that the witness authored or received a copy of it or if the
Producing Party consents to such disclosure, provided that any deponent
who is no longer employed by the Producing Party shall be first required to
sign the Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) any other person as to whom the Designating Party has
consented to disclosure in advance;
(h) such other persons as the parties may agree or may be
ordered by the Court; and
(i) any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the Parties engaged in
settlement discussions

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STIPULATED PROTECTIVE ORDER

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a Receiving Party is served with a subpoena or a court order issued

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in other litigation that would compel disclosure of any information or items

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designated in this Action as “CONFIDENTIAL,” the Receiving Party

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must:
(a) promptly notify in writing the Designating Party (by fax

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and email, if possible). Such notification must include a copy of the

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subpoena or court order;
(b) promptly notify in writing the party who caused the

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

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

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notification shall include a copy of this Order; and
(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.

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If the Designating Party timely seeks a protective order, the

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Receiving Party served with the subpoena or court order shall not produce

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any information designated in this Action as “CONFIDENTIAL” before a

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determination by the court from which the subpoena or order issued, unless

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

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Designating Party shall bear the burden and expense of seeking production

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in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this

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Action to disobey a lawful directive from another court.

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STIPULATED PROTECTIVE ORDER

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
BE PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced

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by a Non- Party in this Action and designated as “CONFIDENTIAL.”

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Such information produced by Non-Parties in connection with this

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litigation is protected by the remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party

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from seeking additional protections.

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

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

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the Party is subject to an agreement with the Non-Party not to produce the

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Non-Party's confidential information, then the Party 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

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subject to a confidentiality agreement with a Non-Party;

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

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in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested;

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and

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(3) make the information requested available for inspection by

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the Non-Party.

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

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this Court within 14 days of receiving the notice and accompanying

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

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confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall not

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produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before determination by the

STIPULATED PROTECTIVE ORDER

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Court.1 Absent a Court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this court of its Protected
Material. All disclosure and discovery disputes are subject to the
undersigned’s Standing Order Regarding Civil Discovery Disputes.
10.

MATERIAL

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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 Order, the Receiving Party must immediately
(a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of
the Protected Material, (c) inform the person or persons to whom
unauthorized disclosures were made of all the terms of this Order, and
(d) request such person or persons to execute the “Acknowledgement
and Agreement to Be Bound” that is attached hereto as Exhibit A.
11.

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UNAUTHORIZED DISCLOSURE OF PROTECTED

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

certain inadvertently produced material is subject to a claim of privilege
or other protection, the obligations of the Receiving Parties are those set
forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is
not intended to modify whatever procedure may be established in an ediscovery order that provides for production without prior privilege
review. Pursuant to the Federal Rule of Evidence 502(d) and (e), insofar
as the parties reach an agreement on the effect of disclosure of a

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The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect
its confidentiality interests in this Court.

STIPULATED PROTECTIVE ORDER

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communication or information covered by the attorney-client privilege
or work product protection, the parties may incorporate their agreement
in the stipulated protective order submitted to the Court.
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.
12.2 Right to Assert Other Objections. By stipulating to the entry
of this Protective Order no Party waives any right it otherwise would
have to object to disclosing or producing any information or item on any
ground not addressed in this Stipulated Protective Order. Similarly, no
Party waives any right to object on any ground to use in evidence of any
of the material covered by this Protective Order.
12.3 No Modification of Privileges. Nothing in this Order shall
modify the law regarding the attorney-client privilege, the attorney work
product doctrine, the joint defense privilege, and any other applicable
privilege or reason for non-disclosure with respect to trade secrets or
other confidential research, development or commercial information to
the extent such privilege exists under applicable law.
12.4 Filing Protected Material. Without written permission from
the Designating Party or a Court order secured after appropriate notice
to all interested persons, a Party may not file in the public record in this
Action any Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5 and General
Order 62. Protected Material may only be filed under seal pursuant to a
Court order authorizing the sealing of the specific Protected Material at
issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
sealing order will issue only upon a request establishing that the
Protected Material at issue is privileged, protectable as a trade secret, or
STIPULATED PROTECTIVE ORDER

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otherwise entitled to protection under the law. If a Receiving Party’s
request to file Protected Material under seal pursuant to Civil Local Rule
79-5(d) and General Order 62 is denied by the Court, then the Receiving
Party may file the information in the public record pursuant to Civil
Local Rule 79-5(e) unless otherwise instructed by the Court.
13.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing

Party, within sixty (60) days after the final disposition of this Action, as
defined in paragraph 4, above, each Receiving Party must return all
Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies,
abstracts, compilations, summaries, and any other format reproducing or
capturing any of the Protected Material. Whether the Protected Material
is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or
entity, to the Designating Party) by the sixty (60) day deadline that (1)
identifies (by category, where appropriate) all the Protected Material that
was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other
format reproducing or capturing any of the Protected Material.
Notwithstanding this provision, Counsel are entitled to retain an archival
copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial
exhibits, expert reports, attorney work product, and consultant and
expert work product, even if such materials contain Protected Material.
Any such archival copies that contain or constitute Protected Material
remain subject to this Protective Order as set forth in Paragraph 4
(DURATION), above.
STIPULATED PROTECTIVE ORDER

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: April 12, 2017

/s/ Marie A. McCrary
/
Adam J. Gutride
Seth A. Safier
Marie A. McCrary
GUTRIDE SAFIER LLP
Attorneys for Plaintiff, Scott Miller

DATED: April 12, 2017

/s/ Cheryl S. Chang
/
Cheryl S. Chang
Jessica A. McElroy
BLANK ROME LLP
Attorneys for Defendant, Yucatan
Foods, L.P.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: April 19, 2017

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___________________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, ___________________________[print or type full name],

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of ___________________________________[print or type full address],

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

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understand the Stipulated Protective Order that was issued by the United

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States District Court for the Northern District of California on

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___________________, in the case of Miller v.Yucatan, Case No. 2:17-

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CV-1470-DMG- GJS. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to do so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in the strict

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compliance with the provisions of this Order.
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.

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I hereby appoint _________________________ [print or type

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full name] of ___________________________________[print or type full

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address and telephone number] as my California agent for service of

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process in connection with this Action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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///
///
///

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STIPULATED PROTECTIVE ORDER

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Date: ______________________
City and State where sworn and signed: ________________________
Printed Name: ____________________________________________
Signature: _______________________________________________

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STIPULATED PROTECTIVE ORDER

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L.R. 5-4.3.4 Attestation

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I, Marie A. McCrary, am the ECF user whose ID and password are
being used to file the parties’ STIPULATED PROTECTIVE ORDER. In
compliance with L.R. 5-4.3.4, I hereby attest that Cheryl S. Chang has
concurred in this filing.

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/s/ Marie A. McCrary

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STIPULATED PROTECTIVE ORDER

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