Jose Linares v. Crown Equipment Corporation et al

Filing 18

STIPULATED PROTECTIVE ORDER FOR INSPECTION OF CARDINAL HEALTH'S PREMISES by Magistrate Judge Kenly Kiya Kato re REQUEST for Protective Order for Inspection of Cardinal Health's Premises #17 (dts)

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Joseph L. Chairez (State Bar No. 98698)
Email:
[e-mail]
Marcus McCutcheon (State Bar No. 281444)
Email:
[e-mail]
BAKER & HOSTETLER LLP
600 Anton Boulevard, Suite 900
Costa Mesa, CA 92626-7221
Telephone: [phone]
Facsimile: 714.754.6611
Attorneys for Cardinal Health

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IN THE UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION
JOSE LINARES,
Plaintiff,

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v.

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CROWN EQUIPMENT
CORPORATION which will do
business in California under the name
CROWN LIFT TRUCKS; DOE
FORKLIFT MAINTENANCE
COMPANY; DOE "AFTERMARKET
PARTS" MANUFACTURING
COMPANY; and DOES 1 TO 100,

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Case No.: 5:16-cv-01637-JGB(KKx)
(PROPOSED) STIPULATED
PROTECTIVE ORDER FOR
INSPECTION OF CARDINAL
HEALTH’S PREMISES

Defendants.

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Case Filed:
April 21, 2016
Date Removed: July 27, 2016
Trial Date: September 26, 2017

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1.

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1.1.

PURPOSES AND LIMITATIONS

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The subpoena served by plaintiff Jose Linares (“Plaintiff”) on Cardinal

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Health 100, Inc. (“Cardinal Health”), dated January 26, 2017 (the “Subpoena”)

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seeks the inspection of a Cardinal Health premises that houses confidential,

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proprietary, and private information for which special protection from public

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

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be warranted (the “Premises.”) Access to the Premises is strictly controlled due to
(PROPOSED) ST IPULAT ED PROT ECT IVE ORDER FOR INSPECT ION OF CARDINAL HEALT H 100, INC.’S PREMISES

various regulations related to the products stored at the Premises. Additionally, the

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Premises is a highly active distribution center which requires the operation of

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heavy machinery and other potentially dangerous equipment.

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Cardinal Health, Plaintiff, and Crown Equipment Corporation (“Crown” and,

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collectively with Cardinal Health and Plaintiff, the “Parties”) hereby stipulate to

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and petition the Court to enter the following Stipulated Protective Order (the

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“Order.”)

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protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal

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principles. The Parties further acknowledge, as set forth in Section 12.3, below,

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that this Order does not entitle the Parties to file confidential information under

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seal. Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the Court to file

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material under seal.

Accordingly,

The Parties acknowledge that this Order does not confer blanket

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1.2.

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The Subpoena seeks the inspection of a Cardinal Health Premises which

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houses confidential, proprietary, and private information. Such confidential and

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proprietary materials and information consist of, among other things, information

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regarding confidential business practices, or other confidential commercial

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information or employee records (including information implicating privacy rights

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of third parties), information generally unavailable to the public, and/or which may

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be privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Access to the Premises is strictly

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controlled due to various regulations related to the products stored at the Premises.

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Additionally, the Premises is a highly active distribution center which requires the

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operation of heavy machinery and other potentially dangerous equipment.
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GOOD CAUSE STATEMENT

(PROPOSED) ST IPULAT ED PROT ECT IVE ORDER FOR INSPECT ION OF CARDINAL HEALT H 100, INC.’S PREMISES
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Accordingly, to facilitate the opportunity for a safe inspection of the

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Premises, to expedite the flow of information, to facilitate the prompt resolution of

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disputes over confidentiality of discovery materials, to adequately protect

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

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are permitted reasonable necessary uses of such material in preparation for and in

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

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the ends of justice, a protective order for such information is justified in this

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matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a

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good faith belief that it has been maintained in a confidential, non-public manner,

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and there is good cause why it should not be part of the public record of this case.

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2.

DEFINITIONS
2.1.

Action: the above-captioned action, entitled Jose Linares v. Crown

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Equipment Corporation, et al., Central District of California Case No. 5:16-cv-

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01637-JGB-(KKx).

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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

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how it is generated, stored, or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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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 or

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

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“CONFIDENTIAL.”

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2.6.

Disclosure or Discovery Material: all items or information, regardless

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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 are

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

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2.7.

Expert: a person with specialized knowledge or experience in a matter

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

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as an expert witness or as a consultant in this Action.

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2.8.

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

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

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outside counsel.

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2.9.

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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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2.10. Outside Counsel of Record: attorneys who are not employees of a

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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

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firm which has appeared on behalf of that party, and includes support staff.

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2.11. Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and

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their support staffs).

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2.12. Premises: the real property located at 4551 East Philadelphia Street,

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Ontario, CA 91761, including any building, appurtenance, or improvement thereon.

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2.13. Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.

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2.14. Professional Vendors: persons or entities that provide litigation

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

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

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medium) and their employees and subcontractors.

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2.15. Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.16. Receiving Party: a Party that received Disclosure or Discovery

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Material from a Producing Party. This shall include a Party that, either itself or

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through its Expert(s), created or obtained photographs or videos designated as

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“CONFIDENTIAL” as defined in this Order.

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3.

SCOPE
The protections conferred by this Order cover not only Protected Material,

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but also: (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, and/or compilations of Protected Material; and, (3)

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any testimony, conversations, and/or presentations by Parties or their Counsel that

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might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of
the trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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Action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1.

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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

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specific material that qualifies under the appropriate standards. The Designating

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

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or 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

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass,

Exercise of Restraint and Care in Designating Material for Protection,

indiscriminate,

or

routinized

designations

are

prohibited.

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

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for an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that

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it designated for protection do not qualify for protection, that Designating Party

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2.

Manner and Timing of Designations. Except as otherwise provided in

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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 for

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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, including photographs, but excluding transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix, at a minimum,

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the legend “CONFIDENTIAL” (hereinafter, “CONFIDENTIAL Legend”), to each
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page that contains protected material. If only a portion or portions of the material

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

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

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A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection

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and before the designation, all of the material made available for inspection

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shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix

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the “CONFIDENTIAL Legend” to each page that contains Protected Material. If

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only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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waive the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2.

Meet and Confer.

The Challenging party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
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6.3.

The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties)

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection

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to which it is entitled under the Producing Party’s designation until the Court

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rules on the challenge.

may

expose

the

Challenging

Party to

sanctions.

Unless

the

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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 Material that

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is disclosed or produced by another Party or by a Non-Party in connection with

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this Action only for prosecuting, defending, or attempting to settle this Action.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order.

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

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below.

When the Action has been

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Protected Material must be stored and maintained by a Receiving Party at a

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location in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2.

Access to the Premises.

For safety and security reasons, unless

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otherwise ordered by the court or permitted in writing by Cardinal Health, access

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to the Premises for the inspection requested in the Subpoena, or any subsequent

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inspection in this Action, shall be limited to:

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(a)

The Parties;

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(b)

The Parties’ Outside Counsel of Record in this Action; and,

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///

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(c)

Experts (as defined in this Order) of the Parties for whom access is

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reasonably necessary for this Action and who have signed the “Acknowledgement

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and Agreement to Be Bound” attached hereto as Exhibit A.

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For safety and security reasons, access to the Premises shall be limited to the

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area immediately surrounding the location of the incident that is the subject of the

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Action and the area designated by Cardinal Health to inspect the Crown Forklift

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identified in the Subpoena.

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Premises.

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Cardinal Health and/or its Outside Counsel may result in expulsion from the

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Failure to abide by the safety and security instructions given by

Premises and termination of the inspection.

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No access will be granted to other areas of the

All photographs and videos taken inside the Premises shall be designated
“CONFIDENTIAL” as defined in this Order.

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7.3.

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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otherwise ordered by the court or permitted in writing by the Designating Party,

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a

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“CONFIDENTIAL” only to:

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Receiving
(a)

Party

may

disclose any information or item designated

the Receiving Party’s Outside Counsel of Record in this Action, as

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

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reasonably necessary to disclose the information for this Action;

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(b)

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

the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

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

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgement and Agreement to Be Bound” attached hereto as Exhibit A;

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(d)

The court and its personnel;

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(e)

Court reporters and their staff;

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(f)

Professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who
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have signed the “Acknowledgment and Agreement to Be Bound” attached hereto as

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Exhibit A;

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(g)

The author or recipient of a document containing the information or

a custodian or other person who otherwise possessed or knew the information;

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(h)

During their depositions, witnesses, and attorneys for witnesses, in the

Action to whom disclosure is reasonably necessary provided they will not be

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permitted

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“Acknowledgment and Agreement to Be Bound” attached hereto as Exhibit A,

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unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material may be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Order; and,

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(i)

to

keep

any

confidential information

unless

they sign the

Any mediator or settlement officer, and their supporting personnel,

mutually agreed-upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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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;
(b)

promptly notify in writing the party who caused the subpoena or order

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

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the subpoena or order is subject to this Order. Such notification shall include a

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copy of this 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 served

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

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

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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

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and 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.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a)

The terms of this Order are applicable to information produced by a

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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

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should be construed as prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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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 Non-

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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 Order

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in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and,

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(3)

make the information requested available for inspection by

the Non-Party, if requested.

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(c)

If the Non-Party fails to seek a protective order from this court within

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14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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

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subject

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

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

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Protected Material.

to

the confidentiality agreement with the Non-Party before a

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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 Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to

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retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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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

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

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MISCELLANEOUS
12.1. Right to Further Relief. Nothing in this Order abridges the right of

any person to seek its modification by the Court in the future.
12.2. Right to Assert Other Objections. By stipulating to the entry of

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

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

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this Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Order.

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12.3. Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected Material

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

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of the specific Protected Material at issue. If a

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Material under seal is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.

Party's request to file Protected

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within

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30 days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of

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the Protected Material. Whether the Protected Material is returned or destroyed,
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March 13, 2017

EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, __________________________, of _______________________________,

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declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for

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the Central District of California on _____, 2017 in the case of Jose Linares v.

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Crown Equipment Corporation, et al., Central District of California Case No. 5:16-

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cv-01637-JGB-(KKx). I agree to comply with and to be bound by all the terms

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of this Stipulated Protective Order and I understand and acknowledge that

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B AK E R & H O S T E T L E R L L P
A T T O R N E Y S AT L AW
CO S TA M ES A

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________________ of

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_____________________________ as my California agent for service of process

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in 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:_________________________________

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- 16 (PROPOSED) ST IPULAT ED PROT ECT IVE ORDER FOR INSPECT ION OF CARDINAL HEALT H 100, INC.’S PREMISES
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