Dolores Rocha et al v. Penske Truck Leasing Co., L.P. et al

Filing 24

ORDER RE STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation 23 . See document for details. (gk)

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JONATHAN A. KLEIN (SBN 162071)
[e-mail]
THOMAS K. HOCKEL (SBN 172367)
[e-mail]
MARK P. IEZZA (SBN 239813)
[e-mail]
KELLY, HOCKEL & KLEIN P.C.
44 Montgomery Street, Suite 1500
San Francisco, CA 94104
Tel.: [phone]
Fax: [phone]
Attorneys for Defendant
PENSKE LOGISTICS, LLC, erroneously sued as “PENSKE TRUCK LEASING
CO., L.P. or PENSKE LOGISTICS, LLP”
JOHN R. RAMIREZ (SBN 201939)
Email: [e-mail]
THE RAMIREZ LAW FIRM
7121 Magnolia Avenue, Suite M
Riverside, CA 92505
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs
DOLORES ROCHA and DEBRA ELLIS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

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) Case No.: 5:15-cv-00736-R-KK
)
)
) ORDER RE STIPULATED
) PROTECTIVE ORDER
Plaintiff,
)
)
vs.
)
)
PENSKE TRUCK LEASING CO.,L.P., )
or PENSKE LOGISTICS LLP, a
)
corporation, and DOES 1 through 50, )
)
inclusive,
)
)
Defendants.
DOLORES ROCHA, deceased, by her
successor in interest JOHN ROCHA,
and DEBRA ELLIS, an individual,

ORDER RE STIPULATED PROTECTIVE ORDER
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Upon consideration of the stipulation of plaintiffs Dolores Rocha, deceased,

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by her successor in interest John Rocha, and Debra Ellis (“Plaintiffs”) and

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defendant Penske Logistics, LLC (“Penske”), by and through their respective

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counsel of record (collectively, “the parties”), for the entry of a protective order,

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the Court hereby orders the following:

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1.

PURPOSES AND GOOD CAUSE STATEMENT

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Disclosure and discovery activity in this action is likely to involve the

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production of (i) proprietary business information concerning Penske’s operations;

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(ii) proprietary business information concerning Penske’s personnel and

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operational policies and procedures; and (iii) employment, personnel and/or

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disciplinary records of non-party Penske employees. Good cause exists for the

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issuance of a protective order because (i) public disclosure of Penske’s proprietary

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business information would create a competitive disadvantage for Penske and (ii)

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public disclosure of confidential information concerning Penske employees would

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violate the privacy rights of third parties. Further, redaction of personal

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identifying information of third parties would not adequately protect Penske from

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potential liability for the disclosure of confidential information relating to third

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parties. Good cause therefore exists for special protection of the categories of

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documents denominated in this paragraph, whether redacted or not, from public

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disclosure and from use for any purpose other than prosecuting this litigation.

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Accordingly, the parties hereby stipulate to and petition the court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal; Civil Local Rule 79-5 sets forth the
ORDER RE STIPULATED PROTECTIVE ORDER
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procedures that must be followed and the standards that will be applied when a

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party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and

House Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.5

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that

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are produced or generated in disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in

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a matter pertinent to the litigation who has been retained by a Party or its counsel

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to serve as an expert witness or as a consultant in this action.

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2.7

House Counsel: attorneys who are employees of a party to this

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action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.8

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

association, or other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees

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of a party to this action but are retained to represent or advise a party to this action

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and have appeared in this action on behalf of that party or are affiliated with a law
ORDER RE STIPULATED PROTECTIVE ORDER
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firm which has appeared on behalf of that party.

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2.10 Party: any party to this action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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2.11 Producing Party: a Party or Non-Party that produces
Disclosure or Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide

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litigation support services (e.g., photocopying, videotaping, translating, preparing

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exhibits or demonstrations, and organizing, storing, or retrieving data in any form

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or medium) and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that

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the Producing Party in good faith identifies as falling within the categories of

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information denominated in paragraph 1 by designating that material as

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“CONFIDENTIAL.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

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SCOPE
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 copied or

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

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

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the
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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality

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to the Designating Party. Any use of Protected Material at trial shall be governed

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by a separate agreement or order.

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4.

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DURATION
The confidentiality obligations imposed by this Order shall remain in

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effect until the time of trial. If this matter proceeds to trial, information

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designated as CONFIDENTIAL and/or kept and maintained pursuant to the terms

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of this Protective Order will become public and will be presumptively available to

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all members of the public, including the press, unless compelling reasons

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supported by specific factual findings to proceed otherwise are demonstrated to

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the district judge in advance of trial.

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If this matter does not proceed to trial, the confidentiality obligations

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imposed by this Order shall remain in effect even after final disposition until a

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Designating Party agrees otherwise in writing or a court order otherwise directs.

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Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this action, with or without prejudice and (2) final judgment herein

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after the completion and exhaustion of all appeals, rehearings, remands, or

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reviews of this action, including the time limits for filing any motions or

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applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The Designating Party

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must designate for protection only those parts of material, documents, items, or

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oral or written communications that qualify – so that other portions of the

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material, documents, items, or communications for which protection is not
ORDER RE STIPULATED PROTECTIVE ORDER
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warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made for

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an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process or to impose unnecessary expenses and burdens on other

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parties) expose the Designating Party to sanctions. If it comes to a Designating

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Party’s attention that information or items that it designated for protection do not

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qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise

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provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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for protection under this Order must be clearly so designated before the material is

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disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to

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each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the

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margins). A Party or Non-Party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting Party has indicated which material it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing

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Party must determine which documents, or portions thereof, qualify for protection
ORDER RE STIPULATED PROTECTIVE ORDER
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under this Order. Then, before producing the specified documents, the Producing

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Party must affix the “CONFIDENTIAL” legend to each page that contains

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Protected Material. If only a portion or portions of the material on a page qualifies

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for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of

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the deposition, hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information or

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item is stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order

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for such material. Upon timely correction of a designation, the Receiving Party

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must make reasonable efforts to assure that the material is treated in accordance

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with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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a designation of confidentiality prior to the close of discovery in this action.

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Unless a prompt challenge to a Designating Party’s confidentiality designation is

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necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not

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waive its right to challenge a confidentiality designation by electing not to mount

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a challenge promptly after the original designation is disclosed but before the
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close of discovery.

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6.2

Meet and Confer. The Challenging Party shall initiate the

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dispute resolution process by providing written notice of each designation it is

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challenging and describing the basis for each challenge. To avoid ambiguity as to

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whether a challenge has been made, the written notice must recite that the

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challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order. The parties shall attempt to resolve each

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challenge in good faith in accordance with the procedures set forth in Local Rule

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37.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge

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without court intervention, the Parties shall follow the procedures set forth in

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Local Rule 37 to obtain a decision from the Court. If one or both of the Parties

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elect to file the Joint Stipulation required by Local Rule 37 under seal, the Parties

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may file a stipulation to that effect or the Challenging Party may file an ex parte

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application as to why the Joint Stipulation or portions thereof should be filed

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under seal.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a Non-Party in

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connection with this case only for prosecuting, defending, or attempting to settle

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this litigation. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items.
ORDER RE STIPULATED PROTECTIVE ORDER
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Unless otherwise ordered by the court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information
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or a custodian or other person who otherwise possessed or knew the information.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in this

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action as “CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such
notification shall include a copy of the subpoena or court order;

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

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party

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served with the subpoena or court order shall not produce any information

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designated in this action as “CONFIDENTIAL” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material – and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(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.” Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions
ORDER RE STIPULATED PROTECTIVE ORDER
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should be construed as prohibiting a Non-Party from seeking additional

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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 the Party

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

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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 subject to a

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confidentiality agreement with a Non-Party;

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

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Stipulated Protective Order in this litigation, the relevant discovery request(s), and

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a reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by
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 in accordance with Local Rule 37, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order in accordance with Local Rule 37, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its
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best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all

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the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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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.

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12.2 Right to Assert Other Objections. By stipulating to the entry of

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this Protective Order no Party waives any right it otherwise would have to object

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to disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested
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persons, a Party may not file in the public record in this action any Protected

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Material. A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 79-5. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material

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at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a

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request establishing that the Protected Material at issue is privileged, protectable

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as a trade secret, or otherwise entitled to protection under the law. If a Receiving

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Party's request to file Protected Material under seal pursuant to Civil Local Rule

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79-5 is denied by the court, then the Receiving Party may file the information in

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the public record pursuant to Civil Local Rule 79-5 unless otherwise instructed by

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the court.

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13.

FINAL DISPOSITION

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Within 90 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must either return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party should submit

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a written certification to the Producing Party (and, if not the same person or entity,

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to the Designating Party) by the 90 day deadline that verifies that all Protected

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Material has either been returned or destroyed. If counsel who originally

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designated the material as Protected Material does not receive that verification or

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is unsatisfied with that verification, that counsel must within 30 days of the

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expiration of the 90 day time period request in writing a verification that all

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Protected Material has been returned or destroyed. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, hearing transcripts, legal memoranda, correspondence,

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deposition, trial exhibits, expert reports, attorney work product, consultant and
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expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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PURSUANT TO STIPULATION OF THE PARTIES, IT IS SO ORDERED.

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DATED: January 21, 2016

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United States District

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ORDER RE STIPULATED PROTECTIVE ORDER
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of

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California on [date] in the case of Rocha, et al. v. Penske Truck Leasing Co.,

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L.P., et al., Case No. 5:15-cv-00736-R-KK. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to 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 disclose

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in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of

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this Order.

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I further agree to submit to the jurisdiction of the United States

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District Court for the Northern District of California for the purpose of enforcing

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the terms of this Stipulated Protective Order, even if such enforcement

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proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full

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name] of _______________________________________ [print or type full

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

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date: _________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________
ORDER RE STIPULATED PROTECTIVE ORDER
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