Anthony Ayala v. U.S XPRESS ENTERPRISES, INC et al

Filing 60

PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 59 (SEE ORDER FOR DETAILS) (dts)

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Christopher C. McNatt, Jr. (SBN 174559)
[e-mail]
SCOPELITIS, GARVIN,
LIGHT, HANSON & FEARY, LLP
2 North Lake Avenue, Suite 460
Pasadena, CA 91101
Tel: [phone]
Fax: [phone]
James H. Hanson, Pro Hac Vice (IBN 0810049)
[e-mail]
SCOPELITIS, GARVIN, LIGHT,
HANSON & FEARY, PC
10 West Market Street, Suite 1500
Indianapolis, IN 46204
Tel: [phone]
Fax: [phone]
Attorneys for Defendants,
U.S. XPRESS ENTERPRISES, INC. and
U.S. XPRESS, INC.
(Additional Counsel listed below)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY AYALA, individually and
on behalf of all those similarly situated,

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Plaintiffs,

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v.
U.S. XPRESS ENTERPRISES, INC.,
U.S. XPRESS, INC., and DOES 1-100,
Defendants.

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Case No. 5:16-cv-00137-GW-KK

[PROPOSED] ORDER
GRANTING STIPULATED
MOTION FOR PROTECTIVE
ORDER

Complaint Filed: December 23, 2015

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NOTE CHANGES MADE BY THE COURT

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
CASE NO. 5:16-CV-00137-GW-KK
634230.5

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Upon the stipulation of the parties, a protective order is granted and entered
as follows:
1. Purposes and Limitations.

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Discovery in this action is likely to involve the production of confidential,

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proprietary, or private information for which special protection from public

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disclosures and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties stipulate to and petition the Court enter the

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following Stipulated Protective Order (“Protective Order”). The parties

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acknowledge that this Protective Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled

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to confidential treatment under the applicable legal principles. The parties further

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acknowledge that this Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rules 79-5 sets forth the procedures that must

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be followed and the standards that will be applied when a party seeks permission

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from the Court to file material under seal.

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2. Good Cause Statement.

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This action is likely to involve commercial, financial, and/or proprietary

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business information for which special protection from public disclosure and from

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use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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confidential business practices and organization, confidential commercial

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information (potentially including information implicating the privacy rights of

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third parties, information otherwise generally unavailable to the public, or

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information that may be privileged or otherwise protected from disclosure under

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state or federal statutes, court rules, case decisions, or common law. Accordingly,

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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to expedite the flow of information, to facilitate the prompt resolution of disputes

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over confidentiality of discovery materials, to adequately protect information the

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parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material in preparation for and in the conduct of

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trial, to address their handling at the end of the litigation, and to serve the ends of

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justice, a protective order for such information is justified in this matter. It is the

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intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case.
3. Nondisclosure of Confidential Documents.

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(a)

"Document" means, without limiting its generality, any physical thing

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containing information or any written, recorded, graphic or other matter, whether

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produced, printed, reproduced, or stored on paper, cards, tapes, disks, belts,

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charges, film, computer storage devices or any other medium, including but not

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limited to all documents necessary to the comprehension or understandings of any

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designated document, such as computer code or metadata, and includes but is not

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limited to originals, drafts, redrafts and each separate copy of each document.

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(b)

Except with prior written consent of the party designating a document

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to be protected from disclosure or as set forth in Paragraph 2 below, no document

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designated as CONFIDENTIAL may be disclosed to any person or entity. A party

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who produces material may designate it as CONFIDENTIAL when the party in

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good faith believes it contains proprietary information, trade secrets, privileged

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information, or nonpublic technical, financial, personal or business information. A

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document designated as CONFIDENTIAL means any document which bears the

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legend CONFIDENTIAL or, if it is not feasible to label the document, which the

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
CASE NO. 5:16-CV-00137-GW-KK
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producing party indicates via cover letter or otherwise at the time of production is

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being produced as CONFIDENTIAL.

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(c)

Except with prior written consent of the party designating a document

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to be protected from disclosure or as set forth in Paragraph 3 below, no document

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designated as CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY may be

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disclosed to any person or entity. A party who produces material may designate it

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as CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY when the party in good

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faith believes it contains highly sensitive proprietary information, trade secrets,

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privileged information, or nonpublic technical, financial, personal or business

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information. A document designated as CONFIDENTIAL - FOR ATTORNEY'S

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EYES ONLY means any document which bears the legend CONFIDENTIAL -

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FOR ATTORNEY'S EYES ONLY or, if it is not feasible to label the document,

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which the producing party indicates via cover letter or otherwise at the time of

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production is being produced as CONFIDENTIAL - FOR ATTORNEY'S EYES

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ONLY.

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(d)

A party receiving from another party any document that has been

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designated as CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S

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EYES ONLY may object in writing to the designation and must state the reasons

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for such objection with respect to each item. The parties shall then meet and confer

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in good faith regarding the designation. If the parties are unable to come to an

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agreement regarding the designation, the party challenging the designation shall be

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obligated to file a motion with the Court challenging such designation. Any such

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motion shall be filed in strict compliance with Local Rules 37-1 and 37-2

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(including the Joint Stipulation requirement).

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(e)

This Stipulated Protective Order shall be without prejudice to the right

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of any party to: bring before the Court at any time that is consistent with the

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Court's Scheduling Order the question of whether any information or documents
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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
CASE NO. 5:16-CV-00137-GW-KK
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are confidential; object to the production of any
information or documents it reasonably considers not subject to discovery or
object to their use at trial; and/or apply to or move the Court for an order
compelling production of information or documents or modifying this Stipulated
Protective Order.
4. Court Use and Court Personnel.

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Notwithstanding anything to the contrary in this Protective Order:

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(a)

Any use of material designated CONFIDENTIAL or

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CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY at trial or other court

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hearings or proceedings shall be governed by the orders of the trial judge.

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(b)

The terms of this Protective Order do not apply to the Court and court

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personnel, who are subject only to the Court’s internal procedures regarding the

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handling of material filed or lodged, including material filed or lodged under seal.

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5. Permissible Disclosures of CONFIDENTIAL Documents.

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Notwithstanding paragraph 1, documents designated as CONFIDENTIAL
may be disclosed to:

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(a)

the parties and their legal counsel in these proceedings;

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(b)

partners, associates, secretaries, paralegal assistants, and employees of

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such counsel to the extent reasonably necessary to render professional services in

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the litigation;

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(c)

CONFIDENTIAL and confidential information contained therein;

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persons with prior knowledge of the documents designated as

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experts who will be providing professional opinions based upon a

review of the CONFIDENTIAL information;

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(e)

court officials involved in this litigation, including court reporters; and

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(f)

any person designated by the Court in the interest of justice, upon

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such terms as the Court may deem proper.

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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(g)

any other individual who has been advised of the contents of this

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Protective Order and has signed a non-disclosure agreement in the form of Exhibit

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"A." Insofar as disclosure of CONFIDENTIAL information to Professional

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Vendors, meaning persons or entities that provide litigation support services (e.g.

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees

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and subcontractors, it shall suffice that an authorized representative of the

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Professional Vendor signs Exhibit “A”.

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6. Permissible Disclosure of Confidential - For Attorney's Eyes Only

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Documents.

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Documents designated as CONFIDENTIAL - FOR ATTORNEY'S EYES

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ONLY may only be disclosed to (a) counsel for the parties; (b) partners, associates,

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secretaries, paralegal assistants, and employees of such counsel, to the extent

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reasonably necessary to render professional services in the litigation; (c) persons

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with prior knowledge of the documents designated as CONFIDENTIAL – FOR

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ATTORNEY’S EYES ONLY and confidential information contained therein; (d)

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experts who will be providing professional opinions based upon a review of the

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CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY information; (e) court

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officials involved in this litigation, including court reporters; (f) any person

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designated by the Court in the interest of justice, upon such terms as the Court may

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deem proper; and (g) Professional Vendors, meaning persons or entities that

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

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preparing exhibits or demonstrations, and organizing, storing, or retrieving data in

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any form or medium) and their employees and subcontractors. A party wishing to

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disclose documents designated as CONFIDENTIAL - FOR ATTORNEY'S EYES

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ONLY to any other person or entity must first obtain prior written consent from the

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producing party or the Court.

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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7. Securing Confidential Documents and Information.

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Counsel for the parties must keep all documents designated as

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CONFIDENTIAL and all documents designated as CONFIDENTIAL - FOR

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ATTORNEY'S EYES ONLY which are received under this Stipulated Protective

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Order in a secure area. Prior to receiving any document designated as

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CONFIDENTIAL, Plaintiff or any person identified in Paragraph 2(d) or 2(g) shall

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be provided with a copy of this Stipulated Protective Order and agree to be bound

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by its terms, and shall certify such agreement by signing a document of the form

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set forth as Exhibit “A” to this Stipulated Protective Order. Prior to receiving any

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document designated as CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY,

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any person identified in Paragraph 3(d) and a person representing any Professional

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Vendor identified in Paragraph 3(g) shall be provided with a copy of this

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Stipulated Protective Order and agree to be bound by its terms, and shall certify

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such agreement by signing a document of the form set forth as Exhibit “A” to this

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Stipulated Protective Order. Such persons provided CONFIDENTIAL information

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shall return all CONFIDENTIAL information to Counsel upon termination of this

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litigation. Counsel making disclosure to any person described herein shall retain

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the original executed copy of the certificate until final resolution of this litigation.

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Prior to receiving any document designated as CONFIDENTIAL - FOR

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ATTORNEY'S EYES ONLY, and after written consent to such production has

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been obtained from the producing party or Court, any person other than those

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identified in Paragraph 3 shall be provided with a copy of this Stipulated Protective

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Order and agree to be bound by its terms, and shall certify such agreement by

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signing a document of the form set forth as Exhibit “A” to this Stipulated

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Protective Order. Such persons provided CONFIDENTIAL - FOR ATTORNEY'S

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EYES ONLY information shall return all CONFIDENTIAL - FOR ATTORNEY'S

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EYES ONLY information to Counsel upon termination of this litigation. Counsel

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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making disclosure to any person described herein shall retain the original executed

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copy of the certificate until final resolution of this litigation.

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8. Confidential Documents and Information in Depositions.

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(a)

A deponent may during a deposition be shown and examined about

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documents designated as CONFIDENTIAL and CONFIDENTIAL - FOR

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ATTORNEY'S EYES ONLY or confidential information contained therein only if

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the deponent is one of the persons or entities designated in Paragraph 2 or in

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compliance with the provisions of Paragraph 2 and/or Paragraph 3, as applicable.

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Deponents shall not retain or copy portions of the transcript of their depositions

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that contain confidential information not provided by them or the entities they

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represent. A deponent who is not a party or a representative of a party shall be

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furnished a copy of this Order before being examined or asked to produce

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documents potentially subject to this Order.

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(b)

Parties (and deponents) may, within 30 days after receiving a

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deposition transcript, designate pages of the transcript (and exhibits thereto) as

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CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY by

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underlining the portions of the pages that are confidential and marking such pages

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with one of the following legends, as applicable:

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CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY. Until the expiration of the

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30-day period, the entire deposition will be treated as CONFIDENTIAL pursuant

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to this Order. If no party or deponent timely designates information or testimony

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in a deposition as CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S

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EYES ONLY, then none of the transcript or its exhibits will be treated as material

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protected by this Order.

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(i) CONFIDENTIAL or (ii)

9. Filing.

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Any party seeking to file material designated as CONFIDENTIAL or

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CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY shall seek to file it under

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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seal according to the provisions of Civil Local Rule 79-5. Material designated as

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CONFIDENTIAL or CONFIDENTIAL-FOR ATTORNEY’S EYES ONLY may

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specified material. If a party’s request to file material designated as

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CONFIDENTIAL or CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY is

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denied by the court, then the Receiving Party may file the information in the public

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record unless otherwise instructed by the Court.

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10. Inadvertent Disclosure.

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(a)

If a party, through inadvertence, produces any information or

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documents without labeling or marking or otherwise designating it as

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CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY in

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accordance with the provisions of this Order, the producing party may give written

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notice to the receiving party that the document or thing produced is deemed

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confidential and should be treated as such in accordance with the provisions of this

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Order. The receiving party must treat such documents and things as confidential

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from the date such notice is received. Disclosure, prior to the receipt of such

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notice, to persons not authorized to receive confidential information shall not be

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deemed to be a violation of this Order.

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(b)

If a party, through inadvertence, produces any document or

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information that it believes is immune from discovery pursuant to an

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attorney/client privilege or the work product privilege, such production shall not be

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deemed a waiver of any privilege, and the producing party may give written notice

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to the receiving party that the document or information produced is deemed

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privileged and that return of the document or information is requested. Upon

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receipt of such written notice, the receiving party shall immediately gather the

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original and all copies of the document or information of which the receiving party

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is aware and shall immediately return the original and all such copies to the

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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producing party. The return of the document(s) and/or information to the

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producing party shall not preclude the receiving party from later moving the Court

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to compel production of the returned documents and/or information.

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11. Use.

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(a)

Persons or entities obtaining access to documents designated as

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CONFIDENTIAL or documents designated as CONFIDENTIAL - FOR

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ATTORNEY'S EYES ONLY and confidential information contained therein under

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this Order shall use the information only for preparation and trial of this litigation

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(including appeals and retrial), and shall not use such information for any other

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purpose, including business, governmental, commercial, administrative, or judicial

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proceedings.

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(b)

If another court, administrative agency, tribunal, person, or entity

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subpoenas or orders production of information or documents designated as

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CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY that a

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party has obtained pursuant to this Order, that party shall promptly notify the

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producing party of the subpoena or production order. Such notice must be provided

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in sufficient time to give the producing party, if possible, the opportunity to

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participate in quashing, modifying, or otherwise responding to any compulsory

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process in an appropriate and timely manner. Upon the filing by the producing

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party of a motion to quash or for protective order, the subpoenaed party shall

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withhold production of documents during the pendency of the motion, unless

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required by law (or court order) not to withhold production. Nothing in this

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Protective Order shall be construed as authorizing a party to disobey a lawful

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subpoena or court issued in another action.

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(c)

By stipulating to the entry of this Protective Order no party waives

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any right it otherwise would have had to object to disclosing or producing any

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information or item on any ground not addressed in this Protective Order.

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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Similarly, no party waives any right to object on any ground to use in evidence of

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any of the material covered by this Protective Order.

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12. Non-Termination.

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The provisions of this Order shall survive the termination of this action and

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continue in full force and effect until further order of this Court. Within 60 days

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after final conclusion of all aspects of this litigation, documents designated as

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CONFIDENTIAL, documents designated as CONFIDENTIAL - FOR

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ATTORNEY'S EYES ONLY, or documents containing confidential information,

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which include but are not limited to, all copies, abstracts, compilations, summaries,

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and any other format reproducing or capturing material designated as

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CONFIDENTIAL or CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY, and

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all copies of same, shall be returned upon written request to the party or person that

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produced such documents, or, at the option of the producer, destroyed, except that

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counsel may retain one copy of all such documents as part of a permanent

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litigation file that is otherwise subject to the confidentiality restrictions set forth

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herein. The foregoing shall not be construed as creating any obligation to disclose

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documents protected by the attorney-client privilege or subject to the attorney work

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produce rule.

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13. Modification.

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Nothing in this Stipulation and Protective Order shall prevent any party or

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other person from seeking modification of this Stipulated Protective Order or from

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objecting to discovery that it believes to be otherwise improper. Any motion

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brought by any party seeking to modify this Protective Order must be brought in

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strict compliance with Local Rules 37-1 and 37-2 (including the Joint Stipulation

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requirement).

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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14. Matters of Public Record.

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This Stipulated Protective Order shall not apply to any document or
materials obtained by counsel which that counsel can demonstrate:

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(a)

(b)

became a matter of public record after discovery without fault,

or

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were already a matter of public record before its receipt by discovery;

negligence or a violation of this Stipulated Protective Order.

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IT IS SO ORDERED.

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SEPTEMBER
Dated this _____ day of ________________, 2016.
8TH

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BY THE COURT:

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___________________________________
The Honorable Kenly Kiya Kato
United States Magistrate Judge

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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EXHIBIT "A"

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NONDISCLOSURE AGREEMENT

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The undersigned, _________________________________(print or type

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name of person) hereby acknowledges that he or she received a copy of the

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Stipulated Protective Order entered into in the case entitled Anthony Ayala v. U.S.

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Xpress Enterprises, Inc. et al., has read the Stipulated Protective Order, agrees to

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be bound by all the provisions thereof, and hereby submits to the jurisdiction of the

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United States District Court for the Central District of California for the purpose of

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enforcement of the terms of the Stipulated Protective Order and the punishment of

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violations thereof.

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Dated: __________________________

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________________________________

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[Signature]

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________________________________

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________________________________

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[Address]

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
CASE NO. 5:16-CV-00137-GW-KK
634230.5

By

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/s/James H. Hanson
James H. Hanson
[e-mail]
E. Ashley Paynter
[e-mail]
SCOPELITIS GARVIN LIGHT
HANSON & FEARY, P.C.
10 West Market Street, Suite 1400
Indianapolis, IN 46204
Tel: [phone]
Fax: [phone] Fax
ATTORNEYS FOR DEFENDANTS

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U.S. XPRESS ENTERPRISES, INC. and
U.S. XPRESS, INC.

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By

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/s/ Justin L. Swidler
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Hwy N., Suite 402
Cherry Hill, NJ 08034
Tel: [phone]
Fax: [phone]

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ATTORNEYS FOR PLAINTIFFS

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By

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/s/ David Borgen
David Borgen (SBN 099354)
[e-mail]
James Kan (SBN 240749)
[e-mail]
Raymond A. Wendell (SBN 298333)
[e-mail]
GOLDSTEIN, BORGEN,
DARDARIAN & HO
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Tel: [phone]
Fax: [phone]

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ATTORNEYS FOR PLAINTIFFS

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/s/James M. Sitkin
James M. Sitkin (SBN 107650)
[e-mail]
LAW OFFICES OF JAMES M. SITKIN
255 California Street, 10th Floor
San Francisco, CA 94111
Tel: [phone]

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ATTORNEY FOR PLAINTIFFS

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[PROPOSED] ORDER GRANTING STIPULATED PROTECTIVE ORDER
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ATTESTATION OF FILER

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I, David Borgen, attest that the other Signatories concur in the

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foregoing and authorize the filing of this document. Signed this 7th day of

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September, 2016.

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Respectfully submitted,

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Dated: September 7, 2016

GOLDSTEIN, BORGEN,
DARDARIAN & HO

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/s/ David Borgen
David Borgen

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ATTESTATION OF FILER - CASE NO. 5:16-CV-00137-GW-KK
634230.5