Marlowe Cackin v. Ingersoll-Rand Industrial U.S., Inc.

Filing 20

PROTECTIVE ORDER by Magistrate Judge John D. Early re Stipulation for Protective Order 19 . (see document for details) (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 MARLOWE CACKIN, individually and on behalf of all others similarly situated, Plaintiff, 13 14 15 16 Case No.: 8:20-cv-02281-JLS (JDEx) STIPULATED PROTECTIVE ORDER [DISCOVERY MATTER] v. Date: N/A INGERSOLL-RAND INDUSTRIAL Time: N/A U.S., INC.; and DOES 1 through 20, Magistrate Judge: John D. Early Complaint Filed: October 28, 2020 inclusive, 17 Defendants. 18 19 Pursuant to the parties’ Stipulation (Dkt. 19), and for good cause shown, it is 20 21 22 23 24 25 26 27 28 hereby found and orders as follows. 1. A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 1 STIPULATED PROTECTIVE ORDER 1 2 3 enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends 4 5 6 7 8 only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 9 file confidential information under seal; Civil Local Rule 79-5 sets forth the 10 procedures that must be followed and the standards that will be applied when a party 11 12 seeks permission from the court to file material under seal. 13 B. 14 This action is likely to involve private and confidential information regarding 15 16 GOOD CAUSE STATEMENT Defendant’s current and former employees (including nonparties) as well as 17 Defendant’s trade secrets, commercial, financial, technical and/or proprietary 18 information for which special protection from public disclosure and from use for any 19 20 purpose other than prosecution of this action is warranted. Such confidential 21 information consists of, among other things, confidential and private personal 22 information of Defendant’s current and former employees (including nonparties), 23 24 confidential business or financial information, information regarding confidential 25 business practices, or other confidential research, development, or commercial 26 information (including information implicating privacy rights of third parties), 27 28 information otherwise generally unavailable to the public, or which may be 2 STIPULATED PROTECTIVE ORDER 1 2 3 privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of 4 5 6 7 8 discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling 9 at the end of the litigation, and serve the ends of justice, a protective order for such 10 information is justified in this matter. It is the intent of the parties that information 11 12 will not be designated as confidential for tactical reasons and that nothing be so 13 designated without a good faith belief that it has been maintained in a confidential, 14 non-public manner, and there is good cause why it should not be part of the public 15 16 17 18 19 20 21 22 23 24 record of this case. 2. DEFINITIONS 2.1 Action: The federal lawsuit, Cackin v. Ingersoll-Rand Industrial U.S., Inc., Case No.: 8:20-cv-02281-JLS-JDE. 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 25 how it is generated, stored or maintained) or tangible things that qualify for 26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 27 28 the Good Cause Statement. 3 STIPULATED PROTECTIVE ORDER 1 2 3 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 4 5 6 7 8 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.6 Disclosure or Discovery Material: all items or information, regardless 9 of the medium or manner in which it is generated, stored, or maintained (including, 10 among other things, testimony, transcripts, and tangible things), that are produced or 11 12 13 14 15 16 17 18 19 20 21 22 23 24 generated in disclosures or responses to discovery in this matter. 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action. 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 outside counsel. 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a party 25 to this Action but are retained to represent or advise a party to this Action and have 26 appeared in this Action on behalf of that party or are affiliated with a law firm which 27 28 has appeared on behalf of that party, and includes support staff. 4 STIPULATED PROTECTIVE ORDER 2.11 Party: any party to this Action, including all of its officers, directors, 1 2 3 employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 5 6 Discovery Material in this Action. 7 2.13 Professional Vendors: persons or entities that provide litigation support 8 9 services (e.g., photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 12 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 13 14 designated as “CONFIDENTIAL.” 15 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 16 17 from a Producing Party. 18 3. 19 20 SCOPE The protections conferred by this Stipulation and Order cover not only 21 Protected Material (as defined above), but also (1) any information copied or 22 extracted from Protected Material; (2) all copies, excerpts, summaries, or 23 24 25 26 27 28 compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 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. 5 STIPULATED PROTECTIVE ORDER 1 4. 2 3 DURATION Once a case proceeds to trial, information that was designated as CONFIDENTIAL or maintained pursuant to this protective order used or introduced 4 5 6 7 8 as an exhibit at trial becomes public and will be presumptively available to all members of the public, including the press, unless compelling reasons supported by specific factual findings to proceed otherwise are made to the trial judge in advance 9 of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 10 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents 11 12 produced in discovery from “compelling reasons” standard when merits-related 13 documents are part of court record). Accordingly, the terms of this protective order 14 do not extend beyond the commencement of the trial. 15 16 17 18 19 20 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that 21 qualifies under the appropriate standards. The Designating Party must designate for 22 protection only those parts of material, documents, items, or oral or written 23 24 communications that qualify so that other portions of the material, documents, items, 25 or communications for which protection is not warranted are not swept unjustifiably 26 within the ambit of this Order. 27 28 6 STIPULATED PROTECTIVE ORDER 1 2 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber the case development process or to impose 4 5 6 7 8 unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 promptly notify all other Parties that it is withdrawing the inapplicable designation. 11 12 5.2 Manner and Timing of Designations. Except as otherwise provided in 13 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 14 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 15 16 17 18 19 20 under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 21 documents, but excluding transcripts of depositions or other pretrial or trial 22 proceedings), that the Producing Party affix at a minimum, the legend 23 24 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 25 contains protected material. If only a portion or portions of the material on a page 26 qualifies for protection, the Producing Party also must clearly identify the protected 27 28 portion(s) (e.g., by making appropriate markings in the margins). 7 STIPULATED PROTECTIVE ORDER 1 2 3 A Party or Non-Party that makes original documents available for inspection need not designate them for protection until after the inspecting Party has indicated which documents it would like copied and produced. During the inspection and 4 5 6 7 8 before the designation, all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which 9 documents, or portions thereof, qualify for protection under this Order. Then, before 10 producing the specified documents, the Producing Party must affix the 11 12 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 13 portion or portions of the material on a page qualifies for protection, the Producing 14 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 15 16 17 18 19 20 21 22 23 24 markings in the margins). (b) for testimony given in depositions that the Designating Party identify the Disclosure or Discovery Material on the record, before the close of the deposition all protected testimony. (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information is stored the legend 25 “CONFIDENTIAL.” If only a portion or portions of the information warrants 26 protection, the Producing Party, to the extent practicable, shall identify the protected 27 28 portion(s). 8 STIPULATED PROTECTIVE ORDER 5.3 1 2 3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court’s Scheduling Order. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint stipulation pursuant to Local Rule 37-2. 6.4 The burden of persuasion in any such challenge proceeding shall be on 21 the Designating Party. Frivolous challenges, and those made for an improper 22 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 23 24 parties) may expose the Challenging Party to sanctions. Unless the Designating Party 25 has waived or withdrawn the confidentiality designation, all parties shall continue to 26 afford the material in question the level of protection to which it is entitled under the 27 28 Producing Party’s designation until the Court rules on the challenge. 9 STIPULATED PROTECTIVE ORDER 1 2 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this 4 5 6 7 8 9 10 11 12 Action only for prosecuting, defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 13 location and in a secure manner that ensures that access is limited to the persons 14 authorized under this Order. 15 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 Receiving 19 20 Party may disclose any information or item designated “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 22 employees of said Outside Counsel of Record to whom it is reasonably necessary to 23 24 25 26 disclose the information for this Action; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 27 28 10 STIPULATED PROTECTIVE ORDER 1 2 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 5 6 7 8 9 10 11 12 13 14 15 16 (d) the court and its personnel; (e) court reporters and their staff; (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the deposing party 17 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 18 not be permitted to keep any confidential information unless they sign the 19 20 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 21 agreed by the Designating Party or ordered by the court. Pages of transcribed 22 deposition testimony or exhibits to depositions that reveal Protected Material may 23 24 25 26 27 28 be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions. 11 STIPULATED PROTECTIVE ORDER 1 2 3 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation 4 5 6 7 8 9 10 11 12 that compels disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party must: (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 to issue in the other litigation that some or all of the material covered by the subpoena 13 or order is subject to this Protective Order. Such notification shall include a copy of 14 this Stipulated Protective Order; and 15 16 17 18 19 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this 21 action as “CONFIDENTIAL” before a determination by the court from which the 22 subpoena or order issued, unless the Party has obtained the Designating Party’s 23 24 permission. The Designating Party shall bear the burden and expense of seeking 25 protection in that court of its confidential material and nothing in these provisions 26 should be construed as authorizing or encouraging a Receiving Party in this Action 27 28 to disobey a lawful directive from another court. 12 STIPULATED PROTECTIVE ORDER 1 2 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 4 5 6 7 8 9 10 11 12 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s confidential information in its possession, and the Party is 13 subject to an agreement with the Non-Party not to produce the Non-Party’s 14 confidential information, then the Party shall: 15 16 (1) promptly notify in writing the Requesting Party and the Non-Party 17 that some or all of the information requested is subject to a confidentiality agreement 18 with a Non-Party; 19 20 (2) promptly provide the Non-Party with a copy of the Stipulated 21 Protective Order in this Action, the relevant discovery request(s), and a reasonably 22 specific description of the information requested; and 23 24 25 26 27 28 (3) make the information requested available for inspection by the NonParty, if requested. (c) If the Non-Party fails to seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party 13 STIPULATED PROTECTIVE ORDER 1 2 3 may produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the 4 5 6 7 8 9 confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 10. 10 11 12 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this 13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 15 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person 17 or persons to whom unauthorized disclosures were made of all the terms of this 18 Order, and (d) request such person or persons to execute the “Acknowledgment and 19 20 21 22 23 24 Agreement to Be Bound” that is attached hereto as Exhibit A. 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 25 inadvertently produced material is subject to a claim of privilege or other protection, 26 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 27 28 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 14 STIPULATED PROTECTIVE ORDER 1 2 3 may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 4 5 6 7 8 9 10 11 12 information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the stipulated protective order submitted to the court. 12. 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. 13 12.2 Right to Assert Other Objections. By stipulating to the entry of this 14 Protective Order no Party waives any right it otherwise would have to object to 15 16 disclosing or producing any information or item on any ground not addressed in this 17 Stipulated Protective Order. Similarly, no Party waives any right to object on any 18 ground to use in evidence of any of the material covered by this Protective Order. 19 20 12.3 Filing Protected Material. A Party that seeks to file under seal any 21 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 22 only be filed under seal pursuant to a court order authorizing the sealing of the 23 24 specific Protected Material at issue. If a Party’s request to file Protected Material 25 under seal is denied by the court, then the Receiving Party may file the information 26 in the public record unless otherwise instructed by the court 27 28 15 STIPULATED PROTECTIVE ORDER 1 2 3 13. FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 days of a written request by the Designating Party, each Receiving Party must return 4 5 6 7 8 all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected 9 Material. Whether the Protected Material is returned or destroyed, the Receiving 10 Party must submit a written certification to the Producing Party (and, if not the same 11 12 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 13 (by category, where appropriate) all the Protected Material that was returned or 14 destroyed and (2)affirms that the Receiving Party has not retained any copies, 15 16 abstracts, compilations, summaries or any other format reproducing or capturing any 17 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 18 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 19 20 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 21 reports, attorney work product, and consultant and expert work product, even if such 22 materials contain Protected Material. Any such archival copies that contain or 23 24 25 constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 26 27 28 16 STIPULATED PROTECTIVE ORDER 1 2 3 14. VIOLATIONS Any violation of this Order may be punished by any and all appropriate measures including, without limitation, contempt proceedings and/or monetary 4 5 sanctions. 6 7 8 9 10 11 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. Dated: April 28, 2021 JOHN D. EARLY United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 STIPULATED PROTECTIVE ORDER EXHIBIT A 1 2 3 4 5 6 7 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of _________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on April 28, 2021 in the case of Cackin v. Ingersoll-Rand Industrial U.S., Inc., 8 Case No.: 8:20-cv-02281-JLS-JDE. I agree to comply with and to be bound by all 9 the terms of this Stipulated Protective Order and I understand and acknowledge 10 that failure to so comply could expose me to sanctions and punishment in the 11 nature of contempt. I solemnly promise that I will not disclose in any manner any 12 information or item that is subject to this Stipulated Protective Order to any person 13 or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for the purpose of enforcing the terms 16 of this Stipulated Protective Order, even if such enforcement proceedings occur 17 after termination of this action. I hereby appoint __________________________ 18 [print or type full name] of ________________________________ [print or type 19 full address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Stipulated Protective Order. 22 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 Signature: __________________________________ 27 28 18 STIPULATED PROTECTIVE ORDER

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