Aristides Francisco v. Emeritus Corporation et al

Filing 59

ORDER GRANTING STIPULATED PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 58 . See document for details. (Attachments: # 1 Stipulated Protective Order) (mr)

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1 2 3 4 5 6 7 8 KENNETH H. YOON (State Bar No. 198443) STEPHANIE E. YASUDA (State Bar No. 265480) BRIAN G. LEE (State Bar No. 300990) YOON LAW, APC One Wilshire Boulevard, Suite 2200 Los Angeles, California 90017 Telephone: (213) 612-0988 Facsimile: (213) 947-1211 JOSEPH M. HEKMAT (SBN 265229) HEKMAT LAW GROUP 11111 Santa Monica Boulevard, Suite 1700 Los Angeles, California 90025 Telephone: (424) 888-0848 Facsimile: (424) 270-0242 9 10 Attorneys for Plaintiff Aristides Francisco 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 15 16 17 18 19 20 ARISTIDES FRANCISCO, individually Case No.: CV 17-02871 BRO (SSx) and on behalf of all others similarly situated, [Discovery Document: Referred to Magistrate Judge Suzanne H. Segal, Plaintiff, Crtrm. 590] v. STIPULATED PROTECTIVE EMERITUS CORPORATION, an ORDER unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, Date Filed: March 16, 2017 INC., an unknown corporation, and Date Removed: April 14, 2017 DOES 1 through 50, inclusive, Trial Date: None Set Defendants. 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court 6 to enter the following Stipulated Protective Order. The parties acknowledge that 7 this Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use 9 extends only to the limited information or items that are entitled to confidential 10 treatment under the applicable legal principles. The parties further acknowledge, 11 as set forth in Section 12.3, below, that this Stipulated Protective Order does not 12 entitle them to file confidential information under seal; Civil Local Rule 79-5 sets 13 forth the procedures that must be followed and the standards that will be applied 14 when a party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve private third-party information and trade 17 secrets and/or proprietary information for which special protection from public 18 disclosure and from use for any purpose other than prosecution of this action is 19 warranted. Such confidential and proprietary materials and information consist 20 of, among other things, confidential business or financial information, 21 information regarding confidential business practices, or other confidential 22 information (including information implicating privacy rights of third parties), 23 information otherwise generally unavailable to the public, or which may be 24 privileged or otherwise protected from disclosure under state or federal statutes, 25 court rules, case decisions, or common law. Accordingly, to expedite the flow of 26 information, to facilitate the prompt resolution of disputes over confidentiality of 27 discovery materials, to adequately protect information the parties are entitled to 28 keep confidential, to ensure that the parties are permitted reasonable necessary 1 STIPULATED PROTECTIVE ORDER 1 uses of such material in preparation for and in the conduct of trial, to address 2 their handling at the end of the litigation, and serve the ends of justice, a 3 protective order for such information is justified in this matter. It is the intent of 4 the parties that information will not be designated as confidential for tactical 5 reasons and that nothing be so designated without a good faith belief that it has 6 been maintained in a confidential, non-public manner, and there is good cause 7 why it should not be part of the public record of this case. 8 2. 9 10 11 12 DEFINITIONS 2.1 Action: The instant action: Francisco v. Emeritus Corporation et al., Case No. CV 17-02871 BRO (SSx). 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for 15 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 16 the Good Cause Statement. 17 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 19 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained 24 (including, among other things, testimony, transcripts, and tangible things), that 25 are produced or generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve 28 as an expert witness or as a consultant in this Action. 2 STIPULATED PROTECTIVE ORDER 1 2.8 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 4 5 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: attorneys who are not employees of a 7 party to this Action but are retained to represent or advise a party to this Action 8 and have appeared in this Action on behalf of that party or are affiliated with a 9 law firm which has appeared on behalf of that party, and includes support staff. 10 2.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and 12 their support staffs). 13 14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation 16 support services (e.g., photocopying, videotaping, translating, preparing exhibits 17 or demonstrations, and organizing, storing, or retrieving data in any form or 18 medium) and their employees and subcontractors. 19 20 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 21 2.15 Receiving Party: a Party that receives Disclosure or Discovery 22 Material from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. 3 STIPULATED PROTECTIVE ORDER 1 Any use of Protected Material at trial shall be governed by the orders of the 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order shall remain in effect until a Designating Party agrees 6 otherwise in writing or a court order otherwise directs. Final disposition shall be 7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 8 with or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 10 including the time limits for filing any motions or applications for extension of 11 time pursuant to applicable law. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. The Designating Party must designate 17 for protection only those parts of material, documents, items, or oral or written 18 communications that qualify so that other portions of the material, documents, 19 items, or communications for which protection is not warranted are not swept 20 unjustifiably within the ambit of this Order. 21 Mass, indiscriminate, or routinized designations are prohibited. 22 Designations that are shown to be clearly unjustified or that have been made for 23 an improper purpose (e.g., to unnecessarily encumber the case development 24 process or to impose unnecessary expenses and burdens on other parties) may 25 expose the Designating Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that 27 it designated for protection do not qualify for protection, that Designating Party 28 4 STIPULATED PROTECTIVE ORDER 1 must promptly notify all other Parties that it is withdrawing the inapplicable 2 designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in 4 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 5 stipulated or ordered, Disclosure or Discovery Material that qualifies for 6 protection under this Order must be clearly so designated before the material is 7 disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic 10 documents, but excluding transcripts of depositions), that the Producing Party 11 affix 12 “CONFIDENTIAL legend”), to each page that contains protected material. If 13 only a portion or portions of the material on a page qualifies for protection, the 14 Producing Party also must clearly identify the protected portion(s) (e.g., by 15 making appropriate markings in the margins). at a minimum, the legend “CONFIDENTIAL” (hereinafter 16 A Party or Non-Party that makes original documents available for 17 inspection need not designate them for protection until after the inspecting Party 18 has indicated which documents it would like copied and produced. During the 19 inspection and before the designation, all of the material made available for 20 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 21 identified the documents it wants copied and produced, the Producing Party must 22 determine which documents, or portions thereof, qualify for protection under this 23 Order. Then, before producing the specified documents, the Producing Party 24 must affix the “CONFIDENTIAL legend” to each page that contains Protected 25 Material. If only a portion or portions of the material on a page qualifies for 26 protection, the Producing Party also must clearly identify the protected portion(s) 27 (e.g., by making appropriate markings in the margins). 28 5 STIPULATED PROTECTIVE ORDER 1 (b) for testimony given in deposition or in other pretrial or trial 2 proceedings, that the Party offering or sponsoring the testimony identify on the 3 record, before the close of the deposition, hearing, or other proceeding, all 4 protected testimony. When it is impractical to identify separately each portion of 5 testimony that is entitled to protection, and when it appears that substantial 6 portions of the testimony may qualify for protection, the Party that sponsors, 7 offers, or gives the testimony may invoke on the record (before the deposition or 8 proceeding is concluded) a right to have up to 20 days to identify the specific 9 portions of the testimony as to which protection is sought. Only those portions of 10 the testimony that are appropriately designated for protection within the 20 days 11 shall be covered by the provisions of this Stipulated Protective Order. Until the 12 passage of 20 days, the entire transcript shall be treated as “CONFIDENTIAL” 13 pursuant to this Order. 14 (c) for information produced in some form other than documentary 15 (including electronic data) and for any other tangible items, that the Producing 16 Party affix in a prominent place on the exterior of the container or containers in 17 which the information is stored the legend “CONFIDENTIAL.” If only a portion 18 or portions of the information warrants protection, the Producing Party, to the 19 extent practicable, shall identify the protected portion(s). 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 21 failure to designate qualified information or items does not, standing alone, waive 22 the Designating Party’s right to secure protection under this Order for such 23 material. Upon timely correction of a designation, the Receiving Party must make 24 reasonable efforts to assure that the material is treated in accordance with the 25 provisions of this Order. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 28 6 STIPULATED PROTECTIVE ORDER 1 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 2 designation of confidentiality at any time that is consistent with the Court’s 3 Scheduling Order. 4 5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process pursuant to Local Rule 37-1. 6 6.3 The burden of persuasion in any such challenge proceeding shall be on 7 the Designating Party. Frivolous challenges, and those made for an improper 8 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 9 parties) may expose the Challenging Party to sanctions. Unless the Designating 10 Party has waived or withdrawn the confidentiality designation, all parties shall 11 continue to afford the material in question the level of protection to which it is 12 entitled under the Producing Party’s designation until the Court rules on the 13 challenge. 14 7. ACCESS TO AND USE OF PROTECTED MATERIAL 15 7.1 Basic Principles. A Receiving Party may use Protected Material that is 16 disclosed or produced by another Party or by a Non-Party in connection with this 17 Action only for prosecuting, defending, or attempting to settle this Action. Such 18 Protected Material may be disclosed only to the categories of persons and under 19 the conditions described in this Order. When the Action has been terminated, a 20 Receiving Party must comply with the provisions of Section 13 below (FINAL 21 DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a 23 location and in a secure manner that ensures that access is limited to the persons 24 authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 26 otherwise ordered by the court or permitted in writing by the Designating Party, a 27 Receiving 28 “CONFIDENTIAL” only to: Party may disclose any information 7 STIPULATED PROTECTIVE ORDER or item designated 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 2 as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 5 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who 13 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 15 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 16 (h) during their depositions, witnesses, and attorneys for witnesses, in the 17 Action to whom disclosure is reasonably necessary provided: (1) the deposing 18 party requests that the witness sign the “Acknowledgment and Agreement to Be 19 Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to 20 keep any confidential information unless they sign the “Acknowledgment and 21 Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the 22 Designating Party or ordered by the court. Pages of transcribed deposition 23 testimony or exhibits to depositions that reveal Protected Material may be 24 separately bound by the court reporter and may not be disclosed to anyone except 25 as permitted under this Protective Order; and 26 27 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 28 8 STIPULATED PROTECTIVE ORDER 1 8. 2 PRODUCED IN OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED 3 If a Party is served with a subpoena or a court order issued in other 4 litigation that compels disclosure of any information or items designated in this 5 Action as “CONFIDENTIAL,” that Party must: 6 7 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order unless prohibited by law; 8 (b) promptly notify in writing the party who caused the subpoena or order 9 to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. Such notification shall 11 include a copy of this Protective Order; and 12 13 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 14 If the Designating Party timely seeks a protective order, the Party served 15 with the subpoena or court order shall not produce any information designated in 16 this action as “CONFIDENTIAL” before a determination by the court from 17 which the subpoena or order issued, unless the Party has obtained the 18 Designating Party’s permission, or unless otherwise required by the law or court 19 order. The Designating Party shall bear the burden and expense of seeking 20 protection in that court of its confidential material and nothing in these provisions 21 should be construed as authorizing or encouraging a Receiving Party in this 22 Action to disobey a lawful directive from another court. 23 9. A NON-PARTY’S PROTECTED 24 PRODUCED IN THIS LITIGATION MATERIAL SOUGHT TO BE 25 (a) The terms of this Order are applicable to information produced by a 26 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 27 information produced by Non-Parties in connection with this litigation is 28 protected by the remedies and relief provided by this Order. Nothing in these 9 STIPULATED PROTECTIVE ORDER 1 provisions should be construed as prohibiting a Non-Party from seeking 2 additional protections. 3 (b) In the event that a Party is required, by a valid discovery request, to 4 produce a Non-Party’s confidential information in its possession, and the Party is 5 subject to an agreement with the Non-Party not to produce the Non-Party’s 6 confidential information, then the Party shall: 7 (1) promptly notify in writing the Requesting Party and the Non-Party that 8 some or all of the information requested is subject to a confidentiality agreement 9 with a Non-Party; 10 (2) promptly provide the Non-Party with a copy of the Stipulated 11 Protective Order in this Action, the relevant discovery request(s), and a 12 reasonably specific description of the information requested; and 13 14 (3) make the information requested available for inspection by the NonParty, if requested. 15 (c) If the Non-Party fails to seek a protective order from this court within 16 14 days of receiving the notice and accompanying information, the Receiving 17 Party may produce the Non-Party’s confidential information responsive to the 18 discovery request. If the Non-Party timely seeks a protective order, the Receiving 19 Party shall not produce any information in its possession or control that is subject 20 to the confidentiality agreement with the Non-Party before a determination by the 21 court. Absent a court order to the contrary, the Non-Party shall bear the burden 22 and expense of seeking protection in this court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has 25 disclosed Protected Material to any person or in any circumstance not authorized 26 under this Stipulated Protective Order, the Receiving Party must immediately (a) 27 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 28 best efforts to retrieve all unauthorized copies of the Protected Material, (c) 10 STIPULATED PROTECTIVE ORDER 1 inform the person or persons to whom unauthorized disclosures were made of all 2 the terms of this Order, and (d) request such person or persons to execute the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 4 Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other 9 protection, the obligations of the Receiving Parties are those set forth in Federal 10 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 11 whatever procedure may be established in an e-discovery order that provides for 12 production without prior privilege review. Pursuant to Federal Rule of Evidence 13 502(d) and (e), insofar as the parties reach an agreement on the effect of 14 disclosure of a communication or information covered by the attorney-client 15 privilege or work product protection, the parties may incorporate their agreement 16 into this Stipulated Protective Order. 17 12. 18 19 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. 20 12.2 Right to Assert Other Objections. By stipulating to the entry of this 21 Protective Order no Party waives any right it otherwise would have to object to 22 disclosing or producing any information or item on any ground not addressed in 23 this Stipulated Protective Order. Similarly, no Party waives any right to object on 24 any ground to use in evidence of any of the material covered by this Protective 25 Order. 26 12.3 Filing Protected Material. A Party that seeks to file under seal any 27 Protected Material must comply with Civil Local Rule 79-5 and with any 28 pertinent orders of the assigned District Judge and Magistrate Judge. Protected 11 STIPULATED PROTECTIVE ORDER 1 Material may only be filed under seal pursuant to a court order authorizing the 2 sealing of the specific Protected Material at issue. If a Party's request to file 3 Protected Material under seal is denied by the court, then the Receiving Party 4 may file the information in the public record unless otherwise instructed by the 5 court. 6 13. FINAL DISPOSITION 7 After the final disposition of this Action, as defined in Section 4, within 60 8 days of a written request by the Designating Party, each Receiving Party must 9 return all Protected Material to the Producing Party or destroy such material. As 10 used in this subdivision, “all Protected Material” includes all copies, abstracts, 11 compilations, summaries, and any other format reproducing or capturing any of 12 the Protected Material. Whether the Protected Material is returned or destroyed, 13 the Receiving Party must submit a written certification to the Producing Party 14 (and, if not the same person or entity, to the Designating Party) by the 60 day 15 deadline that (1) identifies (by category, where appropriate) all the Protected 16 Material that was returned or destroyed and (2) affirms that the Receiving Party 17 has not retained any copies, abstracts, compilations, summaries or any other 18 format reproducing or capturing any of the Protected Material. Notwithstanding 19 this provision, Counsel are entitled to retain an archival copy of all pleadings, 20 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 21 correspondence, deposition and trial exhibits, expert reports, attorney work 22 product, and consultant and expert work product, even if such materials contain 23 Protected Material. Any such archival copies that contain or constitute Protected 24 Material remain subject to this Protective Order as set forth in Section 4. 25 14. Any violation of this Order may be punished by any and all appropriate 26 measures including, without limitation, contempt proceedings and/or monetary 27 sanctions. 28 IT IS SO STIPULATED. 12 STIPULATED PROTECTIVE ORDER 1 DATED: September 11, 2017 YOON LAW, APC 2 3 By: /s/ Stephanie E. Yasuda Kenneth H. Yoon Stephanie E. Yasuda Attorneys for Plaintiff Aristides Francisco 4 5 6 DATED: September 11, 2017 LITTLER MENDELSON, P.C. 7 8 By: /s/ Shannon R. Boyce J. Kevin Lilly Shannon R. Boyce Rachel T. Segal Attorneys for Defendants Emeritus Corporation and Brookdale Senior Living Communities, Inc. 9 10 11 12 13 14 ATTESTATION REGARDING SIGNATURES 15 I, Stephanie E. Yasuda, attest pursuant to L.R. 5-4.3.4(a)(2)(i) that all 16 signatories listed, and on whose behalf the filing is submitted, concur in the 17 filing’s content and have authorized the filing. 18 19 DATED: September 12, 2017 /s/ Stephanie E. Yasuda 20 21 22 23 24 25 26 27 28 13 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Protective Order that was issued 6 by the United States District Court for the Central District of California on 7 _________________________ in the case of Francisco v. Emeritus Corporation 8 et al., Case No. CV 17-02871 BRO (SSx). I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose 12 in any manner any information or item that is subject to this Protective Order to 13 any person or entity except in strict compliance with the provisions of this Order. _____________________________ [print or type full name], of 14 I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for the purpose of enforcing the terms 16 of this Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ 18 [print or type full name] of _______________________________________ 19 [print or type full address and telephone number] as my California agent for 20 service of process in connection with this action or any proceedings related to 21 enforcement of this Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27 28 14 STIPULATED PROTECTIVE ORDER

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