Trustees of the Southern California Pipe Trades Health and Welfare Trust Fund et al v. Circulating Air, Inc.

Filing 33

PROTECTIVE ORDER by Magistrate Judge Steve Kim re Stipulation for Protective Order 31 . (see document for details) (hr)

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J. PAUL MOORHEAD, Bar No. 240029 1 ADRIAN R. BUTLER, Bar No. 332191 2 BUSH GOTTLIEB, A Law Corporation 3 801 N. Brand Boulevard, Suite 950 Glendale, California 91203-1260 4 Telephone: (818) 973-3200 5 Facsimile: (818) 973-3201 Attorneys for Plaintiffs, Trustees of the Southern 6 California Pipe Trades Health and Welfare Trust 7 Fund et al. ROBERT S. BLUMBERG, Bar No. 161649 8 LITTLER MENDELSON, P.C. 9 633 West 5th Street 63rd Floor 10 Los Angeles, CA 90071 Telephone: 213.443.4300 11 Facsimile: 213.443.4299 12 Attorneys for Defendant, Circulating Air 13 14 15 16 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TRUSTEES OF THE SOUTHERN 17 CALIFORNIA PIPE TRADES HEALTH AND WELFARE TRUST FUND; et al, 18 Plaintiffs, 19 v. Case No. 2:23-cv-08624-SK STIPULATED PROTECTIVE ORDER Complaint Filed: October 12, 2023 Answer Filed: December 14, 2023 20 CIRCULATING AIR, INC., a California corporation, 21 Defendant. 22 23 24 25 26 27 28 1016655v1 11157-31026 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 to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 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 extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth 11 in Section 12.3 (Filing Protected Material), below, that this Stipulated Protective 12 Order does not entitle them to a file confidential information under seal; Civil Local 13 Rule 79-5 sets forth the procedures that must be followed and the standards that will 14 be applied when a party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 Discovery in this action may involve production of confidential, proprietary 17 or private information for which special protection from public disclosure may be 18 warranted. Specifically, Plaintiffs seek information about Defendant’s contracts 19 with various customers and employment data regarding nonparties. Thus, discovery 20 in this case involves some disclosure of private employee information as well as 21 sensitive business information for which special protection from public disclosure 22 may be warranted. Such confidential materials and information may consist of, 23 among other things, trade secrets, confidential business or financial information 24 (including information implicating privacy rights of third parties), information 25 regarding confidential business practices, or information implicating privacy rights, 26 information otherwise generally unavailable to the public, or which may be 27 privileged or otherwise protected from disclosure under state or federal statutes, 28 court rules, case decisions, or common law. 1016655v1 11157-31026 2 1 Accordingly, to expedite the flow of information, to facilitate the prompt 2 resolution of disputes over confidentiality of discovery materials, to adequately 3 protect information the parties are entitled to keep confidential, to ensure that the 4 parties are permitted reasonable necessary uses of such material in preparation for 5 and in the conduct of trial, to address their handling at the end of the litigation, and 6 serve the ends of justice, a protective order for such information is justified in this 7 matter. It is the intent of the parties that information will not be designated as 8 confidential for tactical reasons and that nothing be so designated without a good 9 faith belief that it has been maintained in a confidential, non-public manner, and 10 there is good cause why it should not be part of the public record of this case. 11 12 13 14 15 16 17 2. DEFINITIONS 2.1 Action: Trustees of the Southern California Pipe Trades Health and Welfare Trust Fund, et al. v. Circulating Air, Inc., Case No. 2:23-cv-08624-SK. 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored, or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement. 21 22 23 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 24 or items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 2.6 Disclosure or Discovery Material: all items or information, regardless 27 of the medium or manner in which it is generated, stored, or maintained (including, 28 among other things, testimony, transcripts, and tangible things), that are produced 1016655v1 11157-31026 3 1 or generated in disclosures or responses to discovery in this matter. 2.7 2 Expert: a person with specialized knowledge or experience in a matter 3 pertinent to the litigation who has been retained by a Party or its counsel to serve as 4 an expert witness or as a consultant in this Action. 2.8 5 House Counsel: attorneys who are employees of a party to this Action. 6 House Counsel does not include Outside Counsel of Record or any other outside 7 counsel. 2.9 8 9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 10 2.10 Outside Counsel of Record: attorneys who are not employees of a 11 party to this Action but are retained to represent or advise a party to this Action and 12 have appeared in this Action on behalf of that party or are affiliated with a law firm 13 which has appeared on behalf of that party, including support staff. 14 2.11 Party: any party to this Action, including all of its officers, directors, 15 employees, trustees, administrators, consultants, retained experts, and Outside 16 Counsel of Record (and their support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 17 18 Discovery Material in this Action. 2.13 Professional Vendors: 19 persons or entities that provide litigation 20 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 23 24 designated as “CONFIDENTIAL.” 2.15 Receiving Party: 25 26 a Party that receives Disclosure or Discovery Material from a Producing Party. 27 28 /// 1016655v1 11157-31026 4 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 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 7 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 10 4. DURATION 11 Even after final disposition of this litigation, the confidentiality obligations 12 imposed by this Order shall remain in effect until a Designating Party agrees 13 otherwise in writing or a court order otherwise directs. Final disposition shall be 14 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 15 or without prejudice; and (2) final judgment herein after the completion and 16 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 17 including the time limits for filing any motions or applications for extension of time 18 pursuant to applicable law. 19 20 21 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 22 Each Party or Non-Party that designates information or items for protection under 23 this Order must take care to limit any such designation to specific material that 24 qualifies under the appropriate standards. The Designating Party must designate for 25 protection only those parts of material, documents, items, or oral or written 26 communications that qualify so that other portions of the material, documents, 27 items, or communications for which protection is not warranted are not swept 28 unjustifiably within the ambit of this Order. 1016655v1 11157-31026 5 1 Mass, indiscriminate, or routinized designations are prohibited. Designations 2 that are shown to be clearly unjustified or that have been made for an improper 3 purpose (e.g., to unnecessarily encumber the case development process or to impose 4 unnecessary expenses and burdens on other parties) may expose the Designating 5 Party to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it 7 designated for protection do not qualify for protection, that Designating Party must 8 promptly notify all other Parties that it is withdrawing the inapplicable designation. 9 5.2 Manner and Timing of Designations. Except as otherwise provided in 10 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 12 under this Order must be clearly so designated before the material is disclosed or 13 produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic 16 documents, but excluding transcripts of depositions or other pretrial or trial 17 proceedings), that the Producing Party affix at a minimum, the legend 18 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 19 contains protected material. If only a portion or portions of the material on a page 20 qualifies for protection, the Producing Party also must clearly identify the protected 21 portion(s) (e.g., by making appropriate markings in the margins). 22 A Party or Non-Party that makes original documents available for 23 inspection need not designate them for protection until after the inspecting Party has 24 indicated which documents it would like copied and produced. 25 inspection and before the designation, all of the material made available for 26 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 27 identified the documents it wants copied and produced, the Producing Party must 28 determine which documents, or portions thereof, qualify for protection under this 1016655v1 11157-31026 6 During the 1 Order. Then, before producing the specified documents, the Producing Party must 2 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 3 If only a portion or portions of the material on a page qualifies for protection, the 4 Producing Party also must clearly identify the protected portion(s) (e.g., by making 5 appropriate markings in the margins). 6 (b) for testimony given in depositions that the Designating Party identify 7 the Disclosure or Discovery Material on the record, before the close of the 8 deposition all protected testimony. 9 (c) for information produced in some form other than documentary and 10 for any other tangible items, that the Producing Party affix in a prominent place on 11 the exterior of the container or containers in which the information is stored the 12 legend “CONFIDENTIAL.” If only a portion or portions of the information 13 warrants protection, the Producing Party, to the extent practicable, shall identify the 14 protected portion(s). 5.3 15 Inadvertent Failures to Designate. If timely corrected, an inadvertent 16 failure to designate qualified information or items does not, standing alone, waive 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 Order. 21 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 23 Timing of Challenges. Any Party or Non-Party may challenge a 24 designation of confidentiality at any time that is consistent with the Court’s 25 Scheduling Order. 6.2 26 Meet and Confer. The Challenging Party Shall initiate the dispute 27 resolution process under Civil Local Rule 37-1 et seq. 28 /// 1016655v1 11157-31026 7 6.3 1 The burden of persuasion in any such challenge proceeding shall be 2 on the Designating Party. Frivolous challenges, and those made for an improper 3 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 4 parties), may expose the Challenging Party to sanctions. Unless the Designating 5 Party has waived or withdrawn the confidentiality designation, all parties shall 6 continue to afford the material in question the level of protection to which it 7 is entitled under the Producing Party’s designation until the Court rules on the 8 challenge. 9 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 11 Basic Principles. A Receiving Party may use Protected Material that 12 is disclosed or produced by another Party or by a Non-Party in connection with 13 this Action only for prosecuting, defending, or attempting to settle this Action. 14 Such Protected Material may be disclosed only to the categories of persons and 15 under the conditions described in this Order. 16 terminated, a Receiving Party must comply with the provisions of Section 13 below 17 (FINAL DISPOSITION). When the Action has been 18 Protected Material must be stored and maintained by a Receiving Party at 19 a location and in a secure manner that ensures that access is limited to the 20 persons authorized under this Order. 7.2 21 Disclosure of “CONFIDENTIAL” Information or Items. Unless 22 otherwise ordered by the Court or permitted in writing by the Designating Party, a 23 Receiving 24 “CONFIDENTIAL” only to: Party may disclose any information or item designated 25 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 26 well as employees of said Outside Counsel of Record to whom it is reasonably 27 necessary to disclose the information for this Action; 28 /// 1016655v1 11157-31026 8 1 (b) the officers, directors, employees (including House Counsel), 2 trustees, and administrators of the Receiving Party to whom disclosure is reasonably 3 necessary for this Action; 4 (c) Experts (as defined in this Order) of the Receiving Party to whom 5 disclosure is reasonably necessary for this Action and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (d) Employees of the Southern California Pipe Trade Administrative 8 Corporation, Southern California Pipe Trades District Council No. 16 of the United 9 Association and its affiliated local unions, International Association of Sheet Metal, 10 Air, Rail and Transportation Workers Local Union 105, Airconditioning, 11 Refrigeration and Mechanical Contractors Association of Southern California, and 12 Air Conditioning Sheet Metal Association, to whom disclosure is reasonably 13 necessary for this Action and who have signed the “Acknowledgment and 14 Agreement to Be Bound” (Exhibit A); 15 (e) the Court and its personnel; 16 (f) court reporters and their staff; 17 (g) professional jury or trial consultants, mock jurors, and Professional 18 Vendors to whom disclosure is reasonably necessary for this Action and who have 19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 21 (h) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 22 (i) during their depositions, witnesses, and attorneys for witnesses, in the 23 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 24 requests that the witness sign the form attached as Exhibit A hereto; and (2) they 25 will not be permitted to keep any confidential information unless they sign the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 27 agreed by the Designating Party or ordered by the Court. Pages of transcribed 28 deposition testimony or exhibits to depositions that reveal Protected Material may 1016655v1 11157-31026 9 1 be separately bound by the court reporter and may not be disclosed to anyone except 2 as permitted under this Stipulated Protective Order; and (j) any mediator or settlement officer, and their supporting personnel, 3 4 mutually agreed upon by any of the parties engaged in settlement discussions. 5 6 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 7 IN OTHER LITIGATION 8 If a Party is served with a subpoena or a court order issued in other litigation 9 that compels disclosure of any information or items designated in this Action as 10 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 11 12 shall include a copy of the subpoena or court order; 13 (b) promptly notify in writing the party who caused the subpoena or order 14 to issue in the other litigation that some or all of the material covered by the 15 subpoena or order is subject to this Protective Order. Such notification shall include 16 a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 17 18 pursued by the Designating Party whose Protected Material may be affected. 19 If the Designating Party timely seeks a protective order, the Party served with 20 the subpoena or court order shall not produce any information designated in this 21 action as “CONFIDENTIAL” before a determination by the court from which the 22 subpoena or order issued, unless the Party has obtained the Designating Party’s 23 permission. The Designating Party shall bear the burden and expense of seeking 24 protection in that court of its confidential material, and nothing in these provisions 25 should be construed as authorizing or encouraging a Receiving Party in this Action 26 to disobey a lawful directive from another court. 27 /// 28 /// 1016655v1 11157-31026 10 1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality agreement 14 with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and (3) make the information requested available for inspection by the Non- 18 19 Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this Court within 21 14 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the Court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and 27 expense of seeking protection in this Court of its Protected Material. 28 /// 1016655v1 11157-31026 11 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 7 or persons to whom unauthorized disclosures were made of all the terms of this 8 Order, and (d) request such person or persons to execute the “Acknowledgment and 9 Agreement to Be Bound” that is attached hereto as Exhibit A. 10 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 12 PROTECTED MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other protection, 15 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 16 Procedure 26(b)(5)(B). 17 procedure may be established in an e-discovery order that provides for production 18 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 19 (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work 21 product protection, the parties may incorporate their agreement in the stipulated 22 protective order submitted to the Court. This provision is not intended to modify whatever 23 24 25 26 12. MISCELLANEOUS 12.1 Right to Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 27 12.2 Right to Assert Other Objections. By stipulating to the entry of this 28 Protective Order, no Party waives any right it otherwise would have to object to 1016655v1 11157-31026 12 1 disclosing or producing any information or item on any ground not addressed in this 2 Stipulated Protective Order. Similarly, no Party waives any right to object on any 3 ground to use in evidence of any of the material covered by this Protective Order. 4 12.3 Filing Protected Material. A Party that seeks to file under seal any 5 Protected Material must comply with Civil Local Rule 79-5. Protected Material 6 may only be filed under seal pursuant to a court order authorizing the sealing of the 7 specific Protected Material at issue. If a Party’s request to file Protected Material 8 under seal is denied by the court, then the Receiving Party may file the information 9 in the public record unless otherwise instructed by the court. 10 11 13. FINAL DISPOSITION 12 After the final disposition of this Action, as defined in Section 4 13 (DURATION), within 60 days of a written request by the Designating Party, each 14 Receiving Party must return all Protected Material to the Producing Party or destroy 15 such material. As used in this subdivision, “all Protected Material” includes all 16 copies, abstracts, compilations, summaries, and any other format reproducing or 17 capturing any of the Protected Material. However, the Plaintiffs may retain a copy 18 of any report generated in this matter listing the names of employees on whose 19 behalf the Plaintiffs claim fringe benefit contributions, the hours worked by these 20 employees, the wages paid to the employees, their work classifications, and the 21 contributions claimed by the Plaintiffs. The report referenced in the prior sentence 22 shall be used by the Plaintiffs only for the purpose of allocating any contributions 23 collected and analyzing any benefits allegedly owed to these employees. Whether 24 the Protected Material is returned or destroyed, the Receiving Party must submit a 25 written certification to the Producing Party (and, if not the same person or entity, to 26 the Designating Party) by the 60 day deadline that (1) identifies (by category, where 27 appropriate) all the Protected Material that was returned or destroyed; and (2) 28 affirms that the Receiving Party has not retained any copies, abstracts, compilations, 1016655v1 11157-31026 13 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 6 penalty of perjury that I have read in its entirety and understand the Stipulated 7 Protective Order that was issued by the United States District Court for the Central 8 District of California on ________________ [date] in the case of Trustees of the 9 Southern California Pipe Trades Health and Welfare Trust Fund, et al. v. 10 Circulating Air, Inc., Case No. 2:23-cv-08624-SK. I agree to comply with and to 11 be bound by all the terms of this Stipulated Protective Order, and I understand and 12 acknowledge that failure to so comply could expose me to sanctions and punishment 13 in the nature of contempt. I solemnly promise that I will not disclose in any manner 14 any information or item that is subject to this Stipulated Protective Order to any 15 person or entity except in strict compliance 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 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint __________________________ [print 20 or type full name] of _______________________________________ [print or type 21 full address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 25 Date: ______________________________________ 26 City and State where sworn and signed: _________________________________ 27 Printed name: _______________________________ 28 Signature: __________________________________ 1016655v1 11157-31026 15

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