Felipe Ybarra et al v. Board of Trustees of Supplemental Income Trust Fund et al

Filing 57

PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order 56 . (sp)

17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 1 of 14 Page ID #:567

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MORGAN,LEWIS & BOCKIUS LLP
Lisa Veasman Bar No. 259050
lisa.veasman~a morganlewis.com
300 S. Grand Avenue, Suite 2200
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]
Brian T. Ortelere (pro hac vice)
brian.ortelere morganlewis.com
1701 Market treet
Philadel hia, PA 19103
Tel: +.215.963.5000
Fax: [phone]

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[Additional Counsel on Next Page]
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Attorneys for Defendants
BOARD OF TRUSTEES OF
SUPPLEMENTAL INCOME TRUST FUND;
RICHARD BARBOUR;ROME A. ALOISE;
KEITH FLEMING; CARLOS BORBA;
and CLARK RITCHEY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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FELIPE YBARRA and CESARIO
SERRATO,Individually and as
representatives of a class consistin of
the participants and beneficiaries o~ the
Supplemental Income 401(K)Plan,

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Case No. 8:17-cv-02091-JVS-E
STIPULATED PROTECTIVE
AND CONFIDENTIALITY
ORDER

Plaintiffs,

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vs.

Complaint filed: Nov. 30, 2017

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BOARD OF TRUSTEES OF
SUPPLEMENTAL INCOME TRUST
FUND,et al.,

Magistrate Judge: Charles F. Eick

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Defendants.

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MORGAN,LEWIS St
BOCKIUS LLP
ATR)IiNtYS AT LA W
Los ANce~es

STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 2 of 14 Page ID #:568

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[Additional Counsel]

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Donald L. Havermann (pro hac vice)
donald.havermann morganlewis.com
Sean K. McMahan ro hac vice)
[e-mail]
1 111 Pennsylvania Avenue, NW
Washington, DC 20004
Tel: [phone]
Fax: [phone]

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Attorneys for Defendants
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FRANK SIMS & STOLPER LLP
Andrew D. Stolper(Bar No. 205462)
9 ~ astolper lawfss.com
Jason M. rank (Bar No. 190957)
10 jfrank(a~lawfss.com
Scott H Sims(Bar No. 234148)
1 1 ssims lawfss.com
19800 acArthur Blvd., Suite 855
12 Irvine California 92612
Telep~ione: [phone]
13 Facsimile: (9491201-2405
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FRANKLIN D. AZAR &ASSOCIATES
Jonathan Parrott(Bar No. 248652)
parrott' fdazar.com
14426 ast Evans Avenue
Aurora, CO 80014
Telephone: [phone]
Facsimile: 303 759-5203

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Attorneys for Plaintiffs

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MORGAN,LEWIS &

BOCK~us LIS'
ATIT)RNFYS AT LA W
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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

Case~i8:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 3 of 14 Page ID #:569

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GOOD CAUSE STATEMENT

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This action involves claims arising under the Employee Retirement Income

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Security Act of 1974("ERISA"). This action is likely to involve commercial,

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financial, individually identifiable, protected, confidential, and/or proprietary

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information for which special protection from public disclosure, and from use for

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any purpose other than prosecution ofthis action, is warranted. In particular,

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discovery in this action is likely to involve the identification of a significant amount

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of personal financial information. Furthermore, certain documents and information

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exchanged in discovery may be of a particularly sensitive and confidential nature,

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such that public disclosure of such documents or information could cause

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competitive injury to the parties to this litigation or to certain third parties.

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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over the confidentiality of discovery materials, to adequately

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

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

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

17 justice, a protective order for such information is justified in this matter. It is the
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intent ofthe 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 ofthe public record of this case.

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STIPULATION

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Plaintiffs Felipe Ybarra and Cesario Cerrato ("Plaintiffs") and Defendants

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the Board of Trustees of the Supplemental Income Trust Fund, Richard Barbour,

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Rome A. Aloise, Keith Fleming, Carlos Borba, and Clark Ritchey("Defendants")

2 (collectively, the "Parties"), by and through their respective counsel, and pursuant
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to Rule 26(c) ofthe Federal Rules of Civil Procedure, hereby stipulate and agree to

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MORGAN,LE W IS &

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ATTORNEYS ATLAW
LC5 ANGELES

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

Cas 8:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 4 of 14 Page ID #:570

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the terms of this Stipulated Protective Order as follows, subject to the Definitions

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and other provisions contained herein.

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DEFINITIONS

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a. Action: Ybarra, et al. v. Board ofTrustees ofSupplemental Income

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Trust Fund, et al., Civil Action No. 8:17-cv-02091 (C.D. Cal.).

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b. "CONFIDENTIAL"Information or Items: information (regardless

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

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

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and as specified above in the Good Cause Statement.

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c. Designating Party: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses

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to discovery as "CONFIDENTIAL."

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d. Discovery Material: all items or information, regardless ofthe

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medium or manner in which it is generated, stored, or maintained

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

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things), that are produced or generated in disclosures or responses

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to discovery in this matter.

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e. Expert: a person with specialized knowledge or experience in a

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

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or its counsel to serve as an Expert witness or as a consultant in this

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Action.

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

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association, covered entity (as defined by 45 C.F.R. § 160.103), or

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other legal entity not named as a Party to this action.

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g. etP

: any party to this Action, including all of its officers,

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directors, employees, consultants, retained Experts, and counsel of

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record (and their support staffs).

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

Cas 8:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 5 of 14 Page ID #:571

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h. Producin~rty: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.

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i. Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.
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This Protective Order shall apply to all documents, materials, and

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information, including without limitation documents produced, answers to

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interrogatories, responses to requests for admission, deposition testimony, and other

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information disclosed pursuant to the disclosure or discovery duties created in the

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Action by the Federal Rules of Civil Procedure.

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3.

As used in this Protective Order, the term "document" shall mean all

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documents, electronically stored information, and tangible things within the scope

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of Fed. R. Civ. P. 26(a)(1)(A)(ii) and 34(a)(1). A draft ornon-identical copy is a

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separate document within the meaning of this term.

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4.

Discrete Discovery Materials that the Producing Party reasonably

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believes in good faith to include personal information, trade secrets, or sensitive

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strategic, technical, marketing, or financial information and that the Producing

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Party reasonably fears would, ifpublicly-disclosed, cause competitive injury (to the

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Producing Party or third parties), may be designated as "CONFIDENTIAL" by the

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Producing Party. The Party who so designates Discovery Materials as

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CONFIDENTIAL may at any time revoke that designation. No Party or third party

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producing documents subject to this Order will designate Discovery Materials as

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Confidential unless a particularized, specific assessment was made as to each

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document. Information that is available to the public shall not be designated

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CONFIDENTIAL.

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5.

A Party intending to file any Discovery Materials designated as

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CONFIDENTIAL shall follow the procedures set forth in Local Rule 79-5.2.2.

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Nothing in this paragraph shall prevent the Producing Party (with the consent of

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any relevant third-party) from filing materials, including any Expert reports,

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

Cas 8:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 6 of 14 Page ID #:572

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deposition testimony, or any other Discovery Material designated by the Producing

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Party as CONFIDENTIAL because of its reference to CONFIDENTIAL documents

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or information, with the Court and without seal; such filing shall constitute a

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revocation by the Producing Party of the CONFIDENTIAL designation associated

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with such Discovery Materials.

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6.

If any Party determines during the course of this action that this Order

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does not sufficiently protect the confidentiality of information produced or

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disclosed, or that this Order should otherwise be modified, it may seek to modify

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this Order with the agreement of the other Parties. If such agreement cannot be

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obtained, any Party may seek modification of this Order by motion to the Court.

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7.

Discovery Materials designated as CONFIDENTIAL shall not,

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without the consent of the Designating Party or further Order ofthe Court, be

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disclosed or made available in any way to any person other than:

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a.

attorneys actively working on this case;

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b.

persons regularly employed or associated with the attorneys

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actively working on the case, whose assistance is required by

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said attorneys in the preparation for trial, at trial, or at other

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proceedings in this case;

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c.

the Parties in this case;

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d.

witnesses in the course of deposition or trial testimony where

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counsel has a reasonable and good faith beliefthat examination

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with respect to the document is appropriate in conducting

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discovery or for trial purposes in this case, and any person who

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is being prepared to testify where counsel has a reasonable and

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good faith belief that such person will be a witness in this case

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and that his examination with respect to the document is

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necessary in connection with such testimony;

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

Cas 8:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 7 of 14 Page ID #:573

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e.

Expert witnesses and consultants retained in connection with

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this case (and persons regularly employed or associated with

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the expert or consultant who are actively working on the

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matter), to the extent such disclosure is necessary for

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depositions, preparation, trial or other proceedings in this case;

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f.

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data recovery vendors, graphic consultants or outside copy
services;

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g.

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qualified persons taking stenographic or video testimony
involving such material and their necessary clerical personnel;

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h.

the Court and its employees ("Court Personnel") in this case;

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to any state or federal governmental entity or agency; and

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j.

other persons by written agreement of all the Parties or as

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authorized by the Court.
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Prior to disclosing Discovery Materials designated as

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CONFIDENTIAL to any person listed above (other than the individuals listed in

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Paragraph 7(a)
-(b),(g), and (h)), counsel shall provide such person with a copy of

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this Protective Order and obtain from such person an on-the-record

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acknowledgment stating that he or she has read this Protective Order and agrees to

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be bound by its provisions, or a written acknowledgement (in the form attached as

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Exhibit A). All such acknowledgments shall be retained by counsel and shall be

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subject to in camera review by the Court if good cause for review is demonstrated

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by opposing counsel.

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9.

Nothing in this Order shall prohibit disclosure of a Document

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designated CONFIDENTIAL to a person identified in such Document as its

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author, addressee, or person who is designated on the original document to receive

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a copy. In addition, nothing in this Order shall prohibit disclosure of a Document

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designated CONFIDENTIAL to a person identified in Discovery Material as

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having previously received that designated Document. If Discovery Material

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 8 of 14 Page ID #:574

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designated CONFIDENTIAL makes specific reference to the conduct or statement

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of a specific person, counsel may discuss such conduct or statement with such

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person, provided that no portion ofthe Discovery Material other than that which

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specifically refers to such person's conduct or statement is revealed.

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10.

Whenever a deposition involves the disclosure of Discovery Materials

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designated as CONFIDENTIAL,the portions ofthe deposition involving the

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disclosure of Discovery Materials designated as CONFIDENTIAL may themselves

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be designated CONFIDENTIAL. Such designation shall be made on the record

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during the deposition whenever possible, but a Party may designate portions of

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depositions as CONFIDENTIAL after transcription, provided written notice ofthe

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page and line numbers being designated as CONFIDENTIAL is given to all counsel

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of record within thirty (30)days after notice by the court reporter ofthe completion

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ofthe transcript.

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11.

In the event that allon-Party or another party produces documents that

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a Party wishes in good faith to designate as CONFIDENTIAL,the Party wishing to

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make that designation must do so within thirty(30)business days of receipt, and

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identify the information by bates label or, where not bates labeled, by document

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title and page numbers)or page and line number(s). The non-designating parties

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shall thereafter mark the document or information in the manner requested by the

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Designating Party and thereafter treat the document or information in accordance

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with such marking. The Parties shall not make use of any document or information

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until the time to make a CONFIDENTIAL designation has expired.

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12.

A Party may object to the designation of particular Discovery

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Materials designated as CONFIDENTIAL by giving written notice to the

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Designating Party. If challenged, the written notice shall identify the information to

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which the objection is made. If the Parties cannot resolve the objection through a

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meet-and-confer process within ten(10) court days after the time the notice is

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received, the dispute shall be resolved by motion pursuant to Local Rule 37-2's

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ATroRNEYS ATLAW
LOS ANGELES

II

STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 9 of 14 Page ID #:575

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Joint Stipulation procedure, and it shall be the obligation ofthe Designating Pariy

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to serve on the objecting party its portion ofthe Joint Stipulation within (5)court

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days after the conclusion ofthat meet-and-confer process. If the Designating Party

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does not timely serve its portion ofthe Joint Stipulation, the disputed information

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shall not be treated as CONFIDENTIAL under the terms of this Protective Order.

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If a Joint Stipulation is timely served, the disputed information shall be treated as

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CONFIDENTIAL under the terms of this Protective Order until the Court rules on

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the motion. In connection with a motion filed under this provision, the Designating

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Party shall bear the burden of establishing that good cause exists for the disputed

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information to be treated as CONFIDENTIAL.
13.

Neither the attorney-client privilege nor the work product protection is

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waived by inadvertent disclosure connected with this litigation. The inadvertent

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disclosure by a Producing Party of privileged or protected documents, information,

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or materials in this litigation as part of a production shall not itself constitute a

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waiver for any purpose. A Producing Party which seeks the return of documents

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under this paragraph may claw back the documents that should have been withheld

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on the basis of the attorney-client and/or work product protection. Upon receipt of

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such a request for return, the Party to whom the documents were produced must

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segregate the documents(and all copies thereof and may return, sequester, or

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destroy them within five (5) business days, unless the Party seeks to challenge the

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request for return under the procedure described in Paragraph 14, below. All

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images of withheld privileged information and any notes or communications

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reflecting the content of such documents shall either be destroyed or sequestered.

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14.

The Receiving Party may, within thirty(30) business days of receiving

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a request for return under Paragraph 13, seek an order from the Court directing the

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production ofthe document on the ground that the claimed privilege or protection is

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invalid or inapplicable. However, the inadvertent production ofthe document in

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

Case :17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 10 of 14 Page ID #:576

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the course ofthis action shall not constitute grounds for asserting invalidity or

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waiver ofthe privilege or protection.

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15.

Nothing in this Protective Order overrides any ethical responsibilities

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of any attorney to refrain from examining or disclosing materials that the attorney

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knows or reasonably should know to be privileged and to inform the Producing

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Party that such materials have been produced.

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16.

At the conclusion ofthis case, and any appeal, and upon written

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request by the Designating Party, each document and all copies thereof which have

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been designated as CONFIDENTIAL shall be returned to the Party or Non-Party

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that designated it CONFIDENTIAL, or the Receiving Party may elect to destroy

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the information. Where the Parties agree to return the information designated

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CONFIDENTIAL,the returning Party shall provide all Parties a written

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certification of counsel confirming that all information designated

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CONFIDENTIAL has been returned. Where the Parties agree to destroy

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information designated as CONFIDENTIAL,the destroying Party shall provide all

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Parties with a written certification of counsel confirming the destruction of all

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information designated as CONFIDENTIAL. This provision shall not preclude the

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Parties from maintaining for their records a secured electronic copy of any

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document that is designated as CONFIDENTIAL in this case.

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17.

This Protective Order shall not be deemed or construed as a waiver of

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any right to object to the furnishing of information in response to any discovery

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request. Nor shall this Protective Order be deemed or construed as a waiver of the

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attorney-client, work product, or any other privilege, or ofthe rights of any Party,

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person or entity to oppose the production of any documents or information on any

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permissible grounds. Further, this Protective Order does not limit, restrict or

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otherwise affect the ability of any Party to seek the production of documents,

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testimony or information from any source.

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

Case x:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 11 of 14 Page ID #:577

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18.

Neither this Protective Order nor a Party's designation of particular

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Discovery Materials as CONFIDENTIAL affects or establishes the admissibility or

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waiver of any right to object to the admissibility at trial of any Discovery Materials

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covered by this Protective Order.

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19.

If any party in possession ofinformation designated as

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CONFIDENTIAL is served with a subpoena, request for production of documents,

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or other similar legal process in another proceeding seeking production of

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information designated as CONFIDENTIAL,the Receiving Party shall give written

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notice, by electronic mail, to the undersigned counsel for the party that produced

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the information designated as CONFIDENTIAL, within five(5) business days of

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receipt ofthe subpoena. To the extent permitted by applicable law, the Receiving

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Party shall not produce any ofthe Producing Party 's information designated as

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CONFIDENTIAL for a period of at least ten(10) business days after providing the

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required notice to the Producing Party. If, within ten (10) business days of

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receiving such notice, the Producing Party provides written notice to the Receiving

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Party that it opposes production of its information designated as CONFIDENTIAL,

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the Receiving Party shall not thereafter produce such information, except pursuant

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to a court order (or other order which subjects the party to penalties for

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noncompliance) requiring compliance with the subpoena, request for production, or

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other legal process. The Producing Party shall be solely responsible for asserting

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any objection to the requested production. The Receiving Party shall provide a

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copy of this Order to the Third-Party requesting production of information

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designated as CONFIDENTIAL. This Protective Order does not require the

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Receiving Party or anyone else covered by this Order to challenge or appeal any

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such order requiring production of information designated as CONFIDENTIAL

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covered by this Order, or to subject itself to any penalties for noncompliance with

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any such order, or to seek any relieffrom a court.

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

Case , 17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 12 of 14 Page ID #:578

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20.

This Order applies only to pre-trial proceedings and does not apply to

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use at trial of Discovery Material marked as CONFIDENTIAL. If the parties have

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not reached agreement as to confidentiality of a listed trial exhibit, the Party that

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designated the Discovery Material as CONFIDENTIAL may file a motion for

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protective order with regard to the confidentiality ofthe Discovery Material at trial

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within ten(10)days after service ofthe other Party's list of trial e~ibits in their

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pre-trial submissions. To the extent any Discovery Material designated as

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CONFIDENTIAL pursuant to the terms of this Order is proposed for use at trial,

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but was not listed as a trial e~ibit prior to trial, the parties shall attempt to resolve

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any issues regarding such confidentiality by agreement(which, if the agreement

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provides the document will be treated as Confidential at trial, shall be approved by

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the Court) or, if no agreement can be reached, by asking the Court to address the

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issue prior to the introduction ofthe document as evidence.

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21.

The terms of this Protective Order shall survive the termination of this

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action, and all protections of this Protective Order shall remain in full effect in

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perpetuity.

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22.

The Court retains the right to allow, sua sponte or upon motion,

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disclosure of any subject covered by this Order or to modify this Order at any time

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in the interests ofjustice.

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MORGAN, LEWIS Sr
BOCKIUS LLP
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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO.8:17-CV-02091

Case x:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 13 of 14 Page ID #:579

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IT IS SO STIPULATED AND APPROVED.

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FRANK SIMS & STOLPER LLP
Jason M.Frank
Scott H. Sims
Andrew D. Stolper

3 ~ DATED: September 18, 2018
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FRANKLIN D. AZAR & ASSOCS.PC
Jonathan S. Parrott
Franklin D. Azar
Paul R. Wood

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By /s/ Scott H. Sims
Scott H. Sims

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Attorneys for Plaintiffs
FELIPE YBARRA and
CESARIO SERRATO

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DATED: September 18, 2018

MORGAN,LEWIS & BOCKIUS LLP
Lisa Veasman
Brian T. Ortelere
Donald L. Havermann
Sean K. McMahan

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By /s/Sean K. McMahan
Sean K. McMahan

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Attorneys for Defendants
BOARD OF TRUSTEES OF
SUPPLEMENTAL INCOME
TRUST FUND;RICHARD
BARBOUR;ROME A. ALOISE;
KEITH FLEMING; CARLOS
BORBA; and CLARK RITCHEY

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FOR GOOD CAUSE SHOWN,IT IS SO ORDE

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DATED:

9~j8"~/g

_

D.
~~

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Hon. Charles F. Eick
U.S. Magistrate Judge

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MORGAN,LEWIS $t

BocK~uS LLP
ATNRNFI'S AT LA W
Lcs ANGELES

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STIPULATED PROTECTIVE AND
CONFIDENTIALITY ORDER
CASE NO. 8:17-CV-02091

Case i x:17-cv-02091-JVS-E Document 56 Filed 09/18/18 Page 14 of 14 Page ID #:580

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

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[print or type full name], of
[print or type full address], declare under penalty of perjury that I

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

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issued by the United States District Court for the Central District of California on

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[
date] in the case of Ybarra, et al. v. Board ofTrustees ofSupplemental

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I
ncome Trust Fund, et al., Civil Action No. 8:17-cv-02091 (C.D. Cal.). I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated

13

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

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provisions of this Order. I further agree to submit to the jurisdiction ofthe United

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

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

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proceedings occur after termination of this action. I hereby appoint

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[
print or type full name] of

[print or type full address and

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telephone number] as my California agent for service of process in connection with

2
0

this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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23

Date:

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4

City and State where sworn and signed:

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2
6

Printed name:

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Signature:

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MORGAN,LEW IS Sr
BOCKIUS LLP
ATtt)RNtI'S AT LA W
LOS ANGELES

1

ACKNOWLEDGEMENT
CASE NO.8:17-CV-02091