Kirkland Oard v. Daily Press, LLC et al

Filing 26

ORDER APPROVING STIPULATED PROTECTIVE ORDER by Kenly Kiya Kato re Stipulation for Protective Order #25 (SEE ORDER FOR DETAILS) (dts)

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IN THE UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KIRKLAND OARD, on behalf of
himself and all other similarly situated,
Plaintiff,

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v.
DAILY PRESS, LLC, a California
corporation, LOCAL MEDIA GROUP,
INC., a Delaware corporation; and
DOES 1 through 10, inclusive,
Defendants.

Case No.: 5:16-cv-02039-SVW-KK
[Honorable Stephen V. Wilson]
[PROPOSED] STIPULATED
PROTECTIVE ORDER
Action Filed: November 3, 2015
Action Removed: September 26, 2016
NOTE CHANGES MADE BY THE COURT

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CASE NO.: 5:16-CV-02039-SVW-KK

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I.

STATEMENT OF GOOD CAUSE

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The Parties to the above-captioned case acknowledge and understand that

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this Protective Order does not confer blanket protection on all disclosures or

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

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use extends only to limited information or items that are entitled to confidential

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treatment under the applicable legal principles, and that it does not presumptively

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entitle parties to file confidential information under seal. In this putative class

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action lawsuit, Kirkland Oard (“Plaintiff”), on behalf of himself and others

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similarly situated, alleges that Local Media Group, Inc. (“Local Media”) violated

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the law by improperly treating him and those like him as independent contractors.

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In connection with discovery in this lawsuit, Plaintiff has sought certain

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documents, written discovery responses, deposition testimony, and other items

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containing confidential information, including third-party information protected by

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privacy laws such as personal contact information of current and former

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independent contractors for Local Media, and proprietary business policies,

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procedures, job descriptions, personnel records, payroll records and/or timekeeping

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records of current and former independent contractors for Local Media.

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Parties recognize that employers/contractors such as Local Media are obligated to

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maintain the right to privacy guaranteed by the California Constitution, which

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protects independent contractors’ files from improper disclosure to third parties.

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See Board of Trustees v. Superior Courts, 119 Cal. App. 3d 516 (1981). The

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Parties desire to protect the confidentiality, use, and dissemination of such

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information, agree that good cause exists for this Protective Order, and agree that

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such an order is in the best interest of both parties.

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II.

The

TERMS OF STIPULATED PROTECTIVE ORDER

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IT IS HEREBY STIPULATED by and between the Parties to the above-

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entitled case, by and through their respective counsel of record, that in order to

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facilitate the exchange of information and documents which may be subject to
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[PROPOSED] STIPULATED PROTECTIVE ORDER)
CASE NO.: 5:16-CV-02039-SVW-KK

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confidentiality limitations due to federal laws, state laws, and privacy rights, the

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Parties stipulate as follows:

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following meanings:

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In this Protective Order, the words set forth below shall have the
(a)

"Action" means the above-entitled case (Case No. 5:16-cv-

02039-SVW-KK).

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(b)

"Confidential" means information which is in the possession of

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a Designating Party who believes in good faith that such information is entitled to

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confidential treatment under applicable law. This includes third-party information

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protected by privacy laws such as personal contact information of current and

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former independent contractors for Local Media, as well as proprietary business

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policies, procedures, job descriptions, personnel records, payroll records and/or

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timekeeping records of current and former independent contractors for Local

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Media.

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(c)

“Confidential – Attorneys’ Eyes Only” means any Documents,

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Testimony or Information as defined below for which the Parties consider of a

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highly Confidential and/or proprietary nature.

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(d)

"Confidential Materials" means any Documents, Testimony or

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Information as defined below designated as "Confidential" or “Confidential –

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Attorneys’ Eyes Only” pursuant to the provisions of this Protective Order.

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(e)

"Court" means any judge to whom this Action may be assigned,

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including the Honorable Stephen V. Wilson (District Court Judge), the Honorable

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Kenly K. Kato (Magistrate Judge), as well as Court staff participating in such

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proceedings.

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(f)

"Designating Party" means the Party that designates Materials

as "Confidential" or “Confidential – Attorneys’ Eyes Only.”

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(g)

"Disclose" or "Disclosed" or "Disclosure" means to reveal,

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divulge, give, or make available Materials, or any part thereof, or any information

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contained therein.

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(h)

"Documents" means (i) any "Writing," "Original," and

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"Duplicate" as those terms are defined by California Evidence Code Sections 250,

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255, and 260, and Federal Rules of Evidence, Rule 1001, which have been

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produced in discovery in this Action by any person, and (ii) any copies,

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reproductions, or summaries of all or any part of the foregoing.

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(i)

"Information" means the content of Documents or Testimony.

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(j)

"Party" and "Parties" means the named party(s) in the Action.

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(k)

"Testimony" means all depositions, declarations or other

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testimony taken or used in this Action.
2.

This Protective Order does not apply to any evidence presented at trial

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or any Court hearing or proceeding. Any use of protected material at trial or other

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court hearings or proceedings shall be governed by the orders of the Court. This

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Protective Order also does not apply to the Court and Court staff or personnel,

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including court reporters.

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3.

The Designating Party shall have the right to designate as

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"Confidential" any Documents, Testimony or Information that the Designating

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Party in good faith believes to contain non-public information that is entitled to

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confidential treatment under applicable law.

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4.

The Designating Party shall have the right to designate as

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"Confidential – Attorneys’ Eyes Only" any Documents, Testimony or Information

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that the Designating Party in good faith believes to be of a highly Confidential

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and/or proprietary nature.

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5.

The entry of this Protective Order does not alter, waive, modify, or

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abridge any right, privilege or protection otherwise available to any Party with

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respect to the discovery of matters, including but not limited to any Party's right to
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[PROPOSED] STIPULATED PROTECTIVE ORDER)
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assert the attorney-client privilege, the attorney work-product doctrine, or other

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privileges, or any Party's right to contest any such assertion,

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Any Documents, Testimony or Information to be designated as

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"Confidential" or “Confidential – Attorneys’ Eyes Only” must be clearly so

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designated before the Document, Testimony or Information is Disclosed or

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produced. The designation should not obscure or interfere with the legibility of the

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designated Information.

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(a)

For Documents (apart from transcripts of depositions or other

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pretrial or trial proceedings), the Designating Party must affix the legend

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"Confidential" or “Confidential – Attorneys’ Eyes Only” on each page of any

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Document containing such designated Confidential Material.

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(b)

For Testimony given in depositions the Designating Party may

either:

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(i)

identify on the record, before the close of the deposition,

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all "Confidential" Testimony, by specifying all portions of the Testimony that

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qualify as "Confidential"; or

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(ii)

designate the entirety of the Testimony at the deposition

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as "Confidential" (before the deposition is concluded) with the duty to identify

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more specific portions of the Testimony as to which protection is sought within 30

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days following receipt of the deposition transcript.

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portions of the deposition Testimony are designated for protection, the transcript

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pages containing "Confidential" Information may be separately bound by the court

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reporter, who must affix to the top of each page the legend "Confidential," as

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instructed by the Designating Party.

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(c)

In circumstances where

For Information produced in some form other than Documents,

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and for any other tangible items, including, without limitation, compact discs or

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DVDs, the Designating Party must affix in a prominent place on the exterior of the

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media (i.e., Disc, Tape, Drive) which the Information or item is stored the legend
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[PROPOSED] STIPULATED PROTECTIVE ORDER)
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"Confidential" or “Confidential – Attorneys’ Eyes Only.” If only portions of the

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Information or item warrant protection, the Designating Patty, to the extent

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practicable, shall identify the "Confidential" or “Confidential – Attorneys’ Eyes

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Only” portions.

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7.

The inadvertent production by any of the undersigned Parties or non-

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Parties to the Action of any Document, Testimony or Information during discovery

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in this Action without a "Confidential" or “Confidential – Attorneys’ Eyes Only”

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designation, shall be without prejudice to any claim that such item is

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"Confidential" or “Confidential – Attorneys’ Eyes Only” and such Party shall not

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be held to have waived any rights by such inadvertent production. In the event that

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any Document, Testimony or Information that is subject to a "Confidential" or

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“Confidential – Attorneys’ Eyes Only” designation is inadvertently produced

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without such designation, the Party that inadvertently produced the document shall

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give written notice of such inadvertent production within twenty (20) calendar days

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of discovery of the inadvertent production, together with a further copy of the

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subject Document, Testimony or Information designated as "Confidential" or

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"Confidential - Attorneys' Eyes Only" (the "Inadvertent Production Notice"). Upon

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receipt of the Inadvertent Production Notice, the Party that received the

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inadvertently produced Document, Testimony or Information shall promptly

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destroy the inadvertently produced Document, Testimony or Information and all

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copies thereof, or, at the expense of the producing Party, return such together with

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all copies of such Document, Testimony or Information to counsel for the

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producing Party and shall retain only the "Confidential" or “Confidential –

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Attorneys’ Eyes Only” designated Materials. Should the receiving Party choose to

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destroy such inadvertently produced Document, Testimony or Information, the

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receiving Party shall notify the producing Party in writing of such destruction or

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need for additional time for destruction within ten (10) calendar days of receipt of

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written notice of the inadvertent production. This provision is not intended to apply
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[PROPOSED] STIPULATED PROTECTIVE ORDER)
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to any inadvertent production of any Information protected by attorney-client or

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work product privileges. In the event that this provision conflicts with any

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applicable law regarding waiver of confidentiality through the inadvertent

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production of Documents, Testimony or Information, such law shall govern.

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8.

In the event that counsel for a Party receiving Documents, Testimony

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or Information in discovery designated as "Confidential" or “Confidential –

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Attorneys’ Eyes Only” objects to such designation with respect to any or all of

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such items, said counsel shall advise counsel for the Designating Party, in writing,

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of such objections, the specific Documents, Testimony or Information to which

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each objection pertains, and the specific reasons and support for such objections

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(the "Designation Objections"). Counsel for the Designating Party shall have thirty

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(30) calendar days from receipt of the written, Designation Objections to either (a)

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agree in writing to de-designate Documents, Testimony or Information pursuant to

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any or all of the Designation Objections and/or (b) file a motion with the Court

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seeking to uphold any or all designations on Documents, Testimony or Information

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addressed by the Designation Objections (the "Designation Motion").

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Designation Motion or motion challenging a designation shall be made in strict

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

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requirement). Pending a resolution of the Designation Motion by the Court, any

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and all existing designations on the Documents, Testimony or Information at issue

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in such Motion shall remain in place. The Designating Party shall have the burden

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on any Designation Motion of establishing the applicability of its "Confidential" or

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“Confidential – Attorneys’ Eyes Only” designation. In the event that the

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Designation Objections are neither timely agreed to nor timely addressed in the

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Designation Motion, then such Documents, Testimony or Information shall be de-

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designated in accordance with the Designation Objection applicable to such

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material.

Any

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9.

Access to and/or Disclosure of Confidential Materials designated as

"Confidential" shall be permitted only to the following persons:

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(a)

the Court;

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(b)

attorneys of record in the Action and their affiliated attorneys,

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paralegals, clerical and secretarial staff employed by such attorneys who are

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actively involved in the Action and are not employees of any Party;

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(c)

in-house counsel to the undersigned Parties and the paralegal,

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clerical and secretarial staff employed by such counsel, provided, however, that

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each non-lawyer given access to Confidential Materials shall be advised that such

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Materials are being Disclosed pursuant to, and are subject to, the terms of this

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Protective Order and that they may not be Disclosed other than pursuant to its

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terms;

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(d)

the named Plaintiff;

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(e)

those officers, directors, partners, members, employees and

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agents of all non-designating Parties that counsel for such Parties deems necessary

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to aid counsel in the prosecution and defense of this Action; provided, however,

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that prior to the Disclosure of Confidential Materials to any such officer, director,

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partner, member, employee or agent, counsel for the Party making the Disclosure

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shall deliver a copy of this Protective Order to such person, shall explain that such

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person is bound to follow the terms of such Order, and shall secure the signature of

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such person on a statement in the form attached hereto as Exhibit A;

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(f)

court reporters in this Action (whether at depositions, hearings,

or any other proceeding);
(g)

any deposition, trial or hearing witness in the Action who

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previously has had access to the Confidential Materials, or who is currently or was

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previously an officer, director, partner, member, employee or agent of an entity

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that has had access to the Confidential Materials;

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(h)

any deposition, trial or hearing witness in the Action who

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previously did not have access to the Confidential Materials; provided, however,

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that each such witness given access to Confidential Materials shall be advised that

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such Materials are being Disclosed pursuant to, and are subject to, the terms of this

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Protective Order and that they may not be Disclosed other than pursuant to its

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terms;

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(i)

mock jury participants, provided, however, that prior to the

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Disclosure of Confidential Materials to any such mock jury participant, counsel for

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the Party making the Disclosure shall deliver a copy of this Protective Order to

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such person, shall explain that such person is bound to follow the terms of such

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Order, and shall secure the signature of such person on a statement in the form

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attached hereto as Exhibit A;

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(j)

outside experts or expert consultants consulted by the

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undersigned Parties or their counsel in connection with the Action, whether or not

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retained to testify at any oral hearing; provided, however, that prior to the

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Disclosure of Confidential Materials to any such expert or expert consultant,

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counsel for the Party making the Disclosure shall deliver a copy of this Protective

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Order to such person, shall explain its terms to such person, and shall secure the

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signature of such person on a statement in the form attached hereto as Exhibit A. It

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shall be the obligation of counsel, upon learning of any breach or threatened breach

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of this Protective Order by any such expert or expert consultant, to promptly notify

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counsel for the Designating Party of such breach or threatened breach;

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(k)
(l)

the mediator agreed to by the Parties.

and

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any other person that the Designating Party agrees to in writing;

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Access to and/or Disclosure of Confidential Materials designated as

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"Confidential - Attorneys Eyes Only" shall be permitted only to such persons

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designated in subsections a.-c. and e.-l., of paragraph 7.
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[PROPOSED] STIPULATED PROTECTIVE ORDER)
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11.

Confidential Materials shall be used by the persons receiving them

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only for the purposes of preparing for, conducting, participating in the conduct of,

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and/or prosecuting and/or defending the Action, and not for any business or other

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purpose whatsoever. This Protective Order is expressly intended to comply with

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Rule 1-500(A) of the California Rules of Professional Conduct.

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12.

Any Party to the Action (or other person subject to the terms of this

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Protective Order) may ask the Court, after appropriate notice to the other Parties to

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the Action, to modify or grant relief from any provision of this Protective Order.

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Any such motion shall be made in strict compliance with Civil Local Rules 37-1

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and 37-2 (including the Joint Stipulation requirement).

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13.

Entering into, agreeing to, and/or complying with the terms of this

Protective Order shall not:

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(a)

operate as an admission by any person that any particular

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Document, Testimony or Information marked "Confidential" or “Confidential –

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Attorneys’ Eyes Only” contains or reflects trade secrets, proprietary, confidential

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or competitively sensitive business, commercial, financial or personal information;

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or

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(b)

prejudice in any way the right of any Party (or any other person

subject to the terms of this Protective Order):

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(i)

to seek a determination by the Court of whether any

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particular Confidential Material should be subject to protection as "Confidential"

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or “Confidential – Attorneys’ Eyes Only” under the terms of this Protective Order;

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or

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(ii)

to seek relief from the Court on appropriate notice to all

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other Parties to the Action from any provision(s) of this Protective Order, either

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generally or as to any particular Document, Material or Information.

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14.

Any party to the Action who has not executed this Protective Order as

of the time it is presented to the Court for signature may thereafter become a party
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to this Protective Order by its counsel's signing and dating a copy thereof and filing

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the same with the Court, and serving copies of such signed and dated copy upon

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the other Parties to this Protective Order.

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15.

Any Information that may be produced by a non-Party witness in

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discovery in the Action pursuant to subpoena or otherwise may be designated by

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such non-Party as "Confidential" or “Confidential – Attorneys’ Eyes Only” under

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the terms of this Protective Order, and any such designation by a non-Party shall

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have the same force and effect, and create the same duties and obligations, as if

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made by one of the undersigned Parties hereto. Any such designation shall also

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function as consent by such producing non-Party witness to the authority of the

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Court in the Action to resolve and such designation, or any other matter otherwise

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arising under this Protective Order.

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16.

If any person subject to this Protective Order who has custody of any

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Confidential Materials receives a subpoena or other process ("Subpoena") from

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any government or other person or entity demanding production of Confidential

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Materials, the recipient of the Subpoena shall promptly give notice of the same by

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electronic mail transmission, followed by either express mail or overnight delivery

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to counsel of record for the Designating Party, and shall furnish such counsel with

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a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, in

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its sole discretion and at its own cost, move to quash or limit the Subpoena,

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otherwise oppose production of the Confidential Materials, and/or seek to obtain

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confidential treatment of such Confidential Materials from the subpoenaing person

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or entity to the fullest extent available under law. The recipient of the Subpoena

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may not produce any Documents, Testimony or Information pursuant to the

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Subpoena prior to the date specified for production on the Subpoena. However,

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nothing contained in this Protective Order is intended or should be construed as

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authorizing a party in this action to disobey a lawful subpoena issued in another

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action.
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17.

Nothing in this Protective Order shall be construed to preclude any

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Party from asserting in good faith that certain Confidential Materials require

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additional protection. The Parties shall meet and confer to agree upon the terms of

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such additional protection.

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18.

If, after execution of this Protective Order, any Confidential Materials

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submitted by a Designating Party under the terms of this Protective Order are

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Disclosed by a non-Designating Party to any person other than in the manner

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authorized by this Protective Order, the non-Designating Party responsible for the

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Disclosure shall bring all pertinent facts relating to the Disclosure of such

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Confidential Materials to the immediate attention of the Designating Party.

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19.

This Protective Order is entered into without prejudice to the right of

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any Party to knowingly waive the applicability of this Protective Order to any

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Confidential Materials designated by that Party. If the Designating Party uses

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Confidential Materials in a non-Confidential manner, then the Confidential

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designation no longer applies.

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20.

Any Party that seeks to file under seal any information and/or

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documents that have been designated as “Confidential” or “Confidential –

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Attorneys’ Eyes Only,” must comply with Local Rule 79-5. Such information

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and/or documents may only be filed under seal pursuant to a Court order

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authorizing the sealing of the specific protected material at issue. If a Party’s

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request to file such protected material under seal is denied by the Court, then the

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receiving Party may file the information in the public record unless otherwise

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instructed by the Court.

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21.

The Parties shall meet and confer regarding the procedures for use of

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Confidential Materials at trial and shall move the Court for entry of an appropriate

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order.

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22.

Nothing in this Protective Order shall affect the admissibility into

evidence of Confidential Materials, or abridge the rights of any person to seek
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judicial review or to pursue other appropriate judicial action with respect to any

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ruling made by the Court concerning the issue of the status of Protected Material.

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23.

This Protective Order shall continue to be binding after the conclusion

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of this Action and all subsequent proceedings arising from this Action, except that

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a person subject to the Protective Order may seek the written permission of the

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Designating Party or may move the Court for relief from the provisions of this

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Protective Order. To the extent permitted by law, the Court shall retain jurisdiction

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to enforce, modify, or reconsider this Protective Order, even after the Action is

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terminated.

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24.

Upon written request made within thirty (30) calendar days after the

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settlement or other termination of the Action, the undersigned Parties shall have

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thirty (30) calendar days to either (a) promptly return to counsel for each

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Designating Party all Confidential Materials and all copies thereof (except that

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counsel for each Party may maintain in its files, in continuing compliance with the

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terms of this Protective Order, all work product, and one copy of each pleading

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filed with the Court), (b) agree with counsel for the Designating Party upon

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appropriate methods and certification of destruction or other disposition of such

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Confidential Materials, or (c) as to any Documents, Testimony or other

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Information not addressed by sub-paragraphs (a) and (b), file a motion seeking a

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Court order regarding proper preservation of such Materials. To the extent

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permitted by law the Court shall retain continuing jurisdiction to review and rule

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upon the motion referred to in sub-paragraph (c) herein. The Designating Party to

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whom Confidential Materials are returned under this paragraph shall be obligated

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to maintain the returned documents for no less than six (6) years after their receipt.

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25.

After this Protective Order has been signed by counsel for all Parties,

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it shall be presented to the Court for entry. Counsel agree to be bound by the terms

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set forth herein with regard to any Confidential Materials that have been produced

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before the Court signs this Protective Order.
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26.

The Parties and all signatories to the Certification attached hereto as

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Exhibit A agree to be bound by this Protective Order pending its approval and

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entry by the Court. In the event that the Court modifies this Protective Order, or in

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the event that the Court enters a different protective order, the Parties agree to be

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bound by this Protective Order until such time as the Court may enter such a

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different Order. It is the Parties' intent to be bound by the terms of this Protective

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Order pending its entry so as to allow for immediate production of Confidential

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Materials under the terms herein.

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27.

The Court may modify the protective order in the interests of justice

or for public policy reasons.

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IT IS SO ORDERED.
DATED: _February 15, 2017

_________________________________
HON. KENLY KIYA KATO
United States Magistrate Judge

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EXHIBIT A
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CERTIFICATION REGARDING CONFIDENTIAL DISCOVERY

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MATERIALS

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I

hereby

acknowledge

that

I,

__________________

[NAME],

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_________________________ [POSITION AND EMPLOYER], am about to

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receive Confidential Materials supplied in connection with the Action Kirkland

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Oard v. Daily Press, LLC, et al., Case No. 5:16-cv-02039-SVW-KK. I certify that

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I understand that the Confidential Materials are provided to me subject to the terms

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and restrictions of the Protective Order filed in this Action. I have been given a

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copy of the Protective Order, I have read it, and I agree to be bound by its terms.

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I understand that Confidential Materials, as defined in the Protective Order,

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including any notes or other records that may be made regarding any such

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Materials, shall not be Disclosed to anyone except as expressly permitted by the

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Protective Order. I will not copy or use, except solely for the purposes of this

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Action, any Confidential Materials obtained pursuant to this Protective Order,

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except as provided therein or otherwise ordered by the Court in the Action.

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I further understand that I am to retain all copies of all Confidential

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Materials provided to me in the Action in a secure manner, and that all copies of

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such Materials are to remain in my personal custody until termination of my

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participation in this Action, whereupon the copies of such Materials will be

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returned to counsel who provided me with such Materials.

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I acknowledge that, by signing this agreement, I am subjecting myself to the

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

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with respect to enforcement of this Protective Order.

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I understand that violation of this Protective Order may subject me to
sanctions for contempt of court.

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[PROPOSED] STIPULATED PROTECTIVE ORDER)
CASE NO.: 5:16-CV-02039-SVW-KK

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I declare under penalty of perjury, under the laws of the State of California,
that the foregoing is true and correct. Executed this
, 201__, at,

day of

, California.

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DATED:

BY:

Signature

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Title

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Address

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Telephone Number

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[PROPOSED] STIPULATED PROTECTIVE ORDER)
CASE NO.: 5:16-CV-02039-SVW-KK