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)

J. PAUL MOORHEAD, Bar No. 240029

1 [e-mail]

ADRIAN R. BUTLER, Bar No. 332191

2 [e-mail]

BUSH GOTTLIEB, A Law Corporation

3 801 N. Brand Boulevard, Suite 950

Glendale, California 91203-1260

4 Telephone: [phone]
5

Facsimile: [phone]

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 [e-mail]

LITTLER MENDELSON, P.C.

9 633 West 5th Street

63rd Floor

10 Los Angeles, CA 90071

Telephone: [phone]

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

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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

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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

///
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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.
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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

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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

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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

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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

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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

///
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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

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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

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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

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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

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