Simms v. DNC Parks & Resorts at Tenaya, Inc. et al

Filing 32

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Sandra M. Snyder on 3/4/2015. (Rooney, M)

1
2
3
4
5
6

Heather Appleton, Esq. (SBN 162283)
[e-mail]
Cherryl F. Cercado, Esq. (SBN 249990)
[e-mail]
APPLETON LAW GROUP, APC
2101 Rosecrans Avenue, Suite 4240
El Segundo, California 90245
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Timothy Simms

7
8
9
10
11
12
13

Joshua A. Rodine, Esq. (SBN 237774)
SEYFARTH SHAW, LLP
2029 Century Park East, Suite 3500
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
DNC PARKS & RESORTS AT TENAYA, INC.;
DELAWARE NORTH COMPANIES
PARKS & RESORTS, INC.; and
DELAWARE NORTH COMPANIES, INCORPORATED

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

16
17
18
19
20
21
22
23
24
25
26

)
)
)
Plaintiff,
)
)
vs.
)
)
DNC PARKS & RESORTS AT
)
TENAYA, INC, a Delaware
)
corporation; DELAWARE NORTH
COMPANIES PARKS & RESORTS )
)
INC., a Delaware Corporation;
DELAWARE NORTH COMPANIES, )
)
INCORPORATED, a Delaware
)
Corporation; and DOES 1-50,
)
inclusive,
)
)
Defendants.
)
)
TIMOTHY SIMMS,

CASE NO.: 1:13-CV-2075-SMS
CASE FILED: 12/20/13
ASSIGNED FOR ALL PURPOSES TO
HON. SANDRA M. SNYDER
STIPULATED PROTECTIVE
ORDER
Order Concurrently Filed Herewith

TRIAL DATE: 7/6/15

27
28
STIPULATED PROTECTIVE ORDER
1

{Client Files/SIMM01/001/00058245.DOC}

1

IT IS HEREBY STIPULATED by and between Defendants DNC Parks &

2

Resorts at Tenaya, Inc., Delaware North Companies Parks & Resorts, Inc., and

3

Delaware North Companies, Incorporated (collectively, “Defendants”) and

4

Plaintiff Timothy Simms (“Plaintiff”) (hereinafter collectively referred to as the

5

“Parties”), through their respective counsel of record, that a Protective Order be

6

entered by this Court as follows:

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

This Stipulation and Protective Order shall be applicable to and shall apply
to the production and exchange of all document requests and documents,
interrogatories and answers to interrogatories, depositions, requests for admission
and responses to requests for admission, exhibits, and pleadings and all other
information exchanged and furnished in this action by the Parties that the Parties
customarily treat as confidential, private, proprietary, and/or a trade secret as
defined by California Civil Code Section 3426.1.
1.

SCOPE
(a)

The Parties acknowledge that discovery may require disclosure of

information that is private and personal or confidential and proprietary, specifically
personnel records, personnel policies, employment offers, competitive analyses,
income statements, employee, client, or customer personal information (including,
but not limited to medical, social security number and contact information),
medical records, and financial records and statements, along with other trade secret
information as defined in California Civil Code Section 3426.1. As a result, the
Parties agree to enter into a Protective Order on the following terms to ensure the
continuing confidentiality of such information. The Parties further acknowledge
that this Protective Order does not confer blanket protections on all disclosures or
responses to discovery and that the protection it affords extends only to the limited
information or items that are entitled under the applicable legal principles to
treatment as confidential.

28
STIPULATED PROTECTIVE ORDER
2

{Client Files/SIMM01/001/00058245.DOC}

1

(b)

This Protective Order shall limit the use or disclosure of documents,

2

deposition testimony, and related information which are or which embody or

3

disclose any information falling with the scope of Paragraph (1)(a) and designated

4

hereunder as “Confidential,” and shall apply to:

5

(i)

All such documents, including those produced by third parties,

6

designated as “Confidential” in accordance with the terms of this Protective Order

7

and the applicable legal standards;

8
9

(ii)

thereto which include, refer or relate to any Confidential Information;

10
11

Portions of deposition testimony and transcripts and exhibits

(iii)

All information, copies, extracts and complete or partial

summaries prepared or derived from Confidential Information; and

12

(iv)

Portions of briefs, memoranda or any writing filed with or

13

otherwise supplied to the Court, which include or refer to any such Confidential

14

Information.

15

(c)

Any person designating documents, testimony, or other information as

16

“Confidential” hereunder asserts that he or she believes in good faith that such

17

material is Confidential Information which falls within the scope of Paragraph

18

(1)(a) and is not otherwise available to the public generally. Each Party or non-

19

party that designates information or items for protection under this Order must take

20

care to limit any such designation to specific material that qualifies under the

21

appropriate standards. A Designating Party must take care to designate for

22

protection only those parts of material, documents, items, or oral or written

23

communications that qualify so that other portions of the material, documents,

24

items, or communications for which protection is not warranted are not swept

25

unjustifiably within the ambit of this Order.

26

2.

DESIGNATION OF DOCUMENTS AND DEPOSITIONS

27

(a)

Designation of a document as “Confidential” shall be made by

28

stamping or writing CONFIDENTIAL on the document(s). Alternatively, the
STIPULATED PROTECTIVE ORDER
3

{Client Files/SIMM01/001/00058245.DOC}

1

Parties may designate documents as “Confidential” by producing the documents

2

with a letter designating the documents by Bates number as “Confidential.” The

3

Parties shall make all reasonable effort to designate as “Confidential” only those

4

documents that they reasonably believe constitute personnel records, personnel

5

policies, employment offers, competitive analyses, income statements, employee,

6

client or customer personal information, medical records, financial records and

7

statements, and trade secret information as defined in California Civil Code

8

Section 3426.1. The failure to designate documents as “Confidential” at the time

9

of production shall not constitute a waiver of the protection of this Order and any

10

Party may, at any time up to 30 days before the actual trial date in this action,

11

designate any documents or information produced as “Confidential” that have not

12

as yet been so designated. Stamping the legend “Confidential” on the cover of any

13

multi-page document shall designate all pages of the document as confidential,

14

unless otherwise indicated by the Designating Party, but only if the entire

15

document is produced in a bound or otherwise intact manner.

16

(b)

Designation of a deposition or other pretrial testimony, or portions

17

thereof, as “Confidential” shall be made by a statement on the record by counsel

18

for the Party or other person making the claim of confidentiality at the time of such

19

testimony. The portions of depositions so designated as “Confidential” shall be

20

taken only in the presence of persons qualified to receive such information

21

pursuant to the terms of this Protective Order: the Parties and their attorneys and

22

staff, the court reporter, videographer, the deponent, and the deponent’s attorney.

23

Failure of any other person to comply with a request to leave the deposition room

24

will constitute sufficient justification for the witness to refuse to answer any

25

question calling for disclosure of Confidential Information so long as persons are

26

in attendance who are not entitled by this Protective Order to have access to such

27

information. In order to designate material as Confidential Information, the Parties

28

may, but need not, instruct the court reporter to segregate such portions of the
STIPULATED PROTECTIVE ORDER
4

{Client Files/SIMM01/001/00058245.DOC}

1

deposition in a separate transcript designated as “Confidential.” Portions of such

2

deposition transcripts shall be clearly marked as “Confidential” on the cover or on

3

each page, as appropriate.

4

(c)

Any Party may designate documents produced or portions of

5

depositions taken as containing Confidential Information even if not initially

6

marked as “Confidential” in accordance with the terms of this Protective Order by

7

so advising counsel for each Party in writing and by reproducing said documents

8

with the required confidential designation. Thereafter, each such document or

9

transcript shall be treated in accordance with the terms of this Protective Order;

10

provided, however, that there shall be no liability for any disclosure or use of such

11

documents or transcripts, or the Confidential Information contained therein, which

12

occurred prior to actual receipt of such written notice. Any person who receives

13

actual notice of any such designation of previously produced documents or

14

deposition transcripts as containing Confidential Information shall thereafter treat

15

such information as if it had been designated as “Confidential” at the time he, she,

16

or it first received it in connection with this matter.

17

(d)

Inadvertent failure to designate Confidential Information shall not be

18

construed as a waiver, in whole or in part, and may be corrected by the producing

19

party by designating documents produced or portions of depositions taken as

20

containing Confidential Information, even if not initially marked as “Confidential,”

21

in accordance with the terms of this Protective Order and, specifically, Paragraph

22

2(c) above.

23

3.

24
25

LIMITATIONS ON DISCLOSURE OF CONFIDENTIAL
INFORMATION

(a)

No Confidential Information shall be disclosed by anyone receiving

26

such information to anyone other than those persons designated herein. In no

27

event shall Confidential Information be used, either directly or indirectly, by

28

anyone receiving such information for any business, commercial or competitive
STIPULATED PROTECTIVE ORDER
5

{Client Files/SIMM01/001/00058245.DOC}

1

purpose or for any purpose whatsoever other than the direct furtherance of the

2

litigation of this action in accordance with the provisions of this Protective Order.

3

(b)

Confidential Information shall not be disclosed by any person who has

4

received such information through discovery in this action to any other person,

5

except to:

6

(i)

The Parties;

7

(ii)

Attorneys of record for the Parties and their firms’ associates,

8

clerks and other employees involved in the conduct of this litigation, and any court

9

reporters, videographers, or interpreters engaged to assist the parties in discovery;

10

(iii)

DNC Parks & Resorts at Tenaya, Inc., Delaware North Parks &

11

Resorts, Inc. and Delaware North Companies, Incorporated, their subsidiaries’, or

12

their affiliates’ in-house counsel;

13

(iv)

Non-party experts and consultants engaged by counsel for the

14

purpose of preparing or assisting in this litigation, and those experts’ respective

15

clerks and employees involved in assisting them in this litigation, to the extent

16

deemed necessary by counsel;

17

(v)

The Court, its officers, court reporters and similar personnel,

18

provided further that Confidential Information lodged with the Court under seal is

19

subject to further evaluation by the Court;

20

(vi)

Any person as to which it is apparent from the face of a

21

document was either an author, recipient, had knowledge of the contents therein, or

22

was otherwise entitled to view the Confidential Information prior to the intended

23

disclosure in this action; and

24

(vii) Any other potential witnesses whose testimony may be used in

25

connection with the present case who has complied with Paragraph 3(c)

26

immediately below.

27
28

(c)

Before any person described in Paragraphs 3(b)(iv) and (vii) receives

or is shown any document or information which has been designated as
STIPULATED PROTECTIVE ORDER
6

{Client Files/SIMM01/001/00058245.DOC}

1

Confidential, such person shall be given a copy of this Protective Order and shall

2

agree in writing, in the form of the Acknowledgment and Agreement attached

3

hereto as Exhibit A, to be bound by the terms hereof. The original of each such

4

Acknowledgment and Agreement shall be maintained by counsel and, if a witness

5

appears at deposition or at trial and represents that he or she previously executed

6

an Acknowledgment, it shall be produced for inspection by opposing counsel upon

7

request. Any counsel may require the other counsel to provide a copy of the

8

Acknowledgment and Agreement signed by a witness at a deposition before the

9

witness is deposed with regard to any Confidential Information.

10

(d)

Nothing in this Protective Order shall be construed to require

11

execution of the written Acknowledgment and Agreement referred to in Paragraph

12

3(c) above, or to prevent disclosure of Confidential Information, by the party

13

producing and designating such Confidential Information, or by any employee of

14

such party.

15

(e)

The substance or content of Confidential Information, as well as all

16

notes and memoranda relating thereto, shall not be disclosed to anyone other than

17

as set forth in Paragraphs 3(b)(i)-(vii) above.

18

4.

FILING DOCUMENTS UNDER SEAL

19

(a)

If a Party wishes to submit a document to the Court which the other

20

Party has designated as Confidential or which contains Confidential Information

21

and which has not been successfully challenged under Paragraph 5 below, the

22

submitting Party shall notify the Designating Party of the exact material which the

23

Party intends to submit to the Court at least 7 days prior, so as to provide the

24

Designating Party sufficient time to determine whether it needs to bring a motion

25

ordering that the material be filed under seal. Any such motion must comply with

26

the procedures set forth in Local Rules 230 and 141 and must also comply with

27

Federal Rule of Civil Procedure 26(c)(1). The written application and proposed

28

order shall be presented to the Court along with the document intended to be
STIPULATED PROTECTIVE ORDER
7

{Client Files/SIMM01/001/00058245.DOC}

1

submitted for filing under seal. The original and Court’s copy of the document

2

shall be sealed in separate envelopes with a copy of the title page attached to the

3

front of each envelope. If only a portion of the document is sealable, then both the

4

copy lodged with the Clerk and the Court’s copy shall have the sealable portions

5

identified by notation or highlighting of the text.

6

The Application and Order to Seal, along with the material to be placed

7

under seal, shall not be electronically filed but shall be filed manually in the

8

manner prescribed by Local Rules 230 and 141. A Notice of Manual Filing shall

9

also be electronically filed, identifying all materials being manually filed.

10

(b)

Any Party requesting that a record be filed under seal must comply

11

with Local Rule 141. The Parties agree and recognize that Confidential

12

Information or any paper containing Confidential Information cannot be filed

13

under seal based solely upon this stipulated Protective Order.

14

5.

15

Any Party that wishes to challenge the designation of a document or other

CHALLENGE TO CONFIDENTIALITY DESIGNATION

16

information as “Confidential” must identify the documents or information for

17

which it is challenging the designation within 30 days after production, and explain

18

to the Designating Party the basis for the objection. The Designating Party will

19

have 15 days to provide a written response. The Designating Party may, for good

20

cause shown, bring a motion before the Court requesting that the Court confirm the

21

designation of any document or information as “Confidential.” The Party asserting

22

the designation as “Confidential” shall have the burden of establishing good cause

23

for the designation. However, the Court shall be authorized to award the moving

24

party attorneys’ fees as a sanction if the challenge to the “Confidential”

25

designation was made in bad faith or was frivolous. The interested parties or other

26

persons shall attempt to resolve such disagreements before submitting them to the

27

Court pursuant to Local Rule 251(b). Pending resolution of any dispute

28

concerning such designation, all parties and persons governed by this Protective
STIPULATED PROTECTIVE ORDER
8

{Client Files/SIMM01/001/00058245.DOC}

1

Order shall treat all documents and information previously designated as

2

“Confidential” as protected from further disclosure by this Protective Order.

3

6.

SURVIVAL OF ORDER - RETURN OF DOCUMENTS

4

(a)

The provisions of this Order shall continue in effect until otherwise

5

ordered by the Court, or after notice and an opportunity to be heard is afforded to

6

the parties to this action. The final determination or settlement of this action shall

7

not relieve any person who has received Confidential Information or agreed to be

8

bound by the terms of this Protective Order of his, her, or its obligations under this

9

stipulation and Order. The Court shall retain jurisdiction after such final

10

determination or settlement to enforce the provisions of this Order. Upon

11

completion of the litigation, all documents (including copies of documents)

12

containing Confidential Information shall be destroyed or returned to counsel for

13

the producing party, except that (a) documents on which any person has made

14

notations may be destroyed and not returned, and (b) the Parties’ respective

15

attorneys of record may retain one copy of each such document for use in

16

connection with any disputes which may arise under the Court’s retention of

17

jurisdiction as provided for herein. Within sixty days (60) of the conclusion of this

18

litigation, the attorneys for the receiving party shall provide the attorneys for the

19

producing party a certificate representing that such return or destruction was made.

20

(b)

Except as provided in Paragraphs 4 or 6 hereof, documents or things

21

containing the other party’s Confidential Information shall at all times be in the

22

physical possession of those persons qualifying under Paragraph 3 hereunder, or

23

kept by counsel of record at the premises regularly maintained by such counsel of

24

record as and for their respective law offices.

25

7.

26

This Stipulation and Protective Order, except as provided in Paragraph 4,

USE OF DOCUMENTS AT TRIAL

27

shall not apply to information designated or marked Confidential hereunder which

28

is used at any evidentiary hearing or trial in this action. The Parties hereby reserve
STIPULATED PROTECTIVE ORDER
9

{Client Files/SIMM01/001/00058245.DOC}

1

their rights to use, or seek to limit the disclosure of, confidential information at any

2

such hearing or trial.

3

8.

4

Nothing in this Protective Order shall limit the use by any Party, person or

USE OF OWN DOCUMENTS BY PRODUCING PARTY

5

entity of his, her, or its own document or information for legitimate business

6

purposes unrelated to this litigation, even if such documents or information have

7

been designated as “Confidential.”

8

9.

APPLICATIONS TO COURT

9

(a)

This Protective Order shall not preclude or limit any Party’s right to

10

oppose or object to discovery on any ground which would be otherwise available.

11

This Protective Order shall not preclude or limit any Party’s right to seek in

12

camera review or to seek further and additional protection against or limitation

13

upon production or dissemination of information produced in response to

14

discovery, including documents and their contents.

15

(b)

Any person to or by whom disclosure or inspection is made in

16

violation of this Protective Order, and who has knowledge of this Protective Order,

17

shall be bound by the terms hereof.

18

(c)

The Parties hereto, and all other persons who receive Confidential

19

Information pursuant hereto, agree that any Party or other person injured by a

20

violation of this Order does not have an adequate remedy at law and that an

21

injunction against such violation is an appropriate remedy. In the event any person

22

shall violate or threaten to violate any terms of this Protective Order, the Parties

23

agree that the aggrieved party may immediately apply to obtain injunctive relief

24

against any such person. In the event the aggrieved party shall do so, the

25

responding person subject to the provisions of this Order shall not employ as a

26

defense thereto the claim that the aggrieved party has an adequate remedy at law.

27

Any persons subject to the terms of this Order agree that the Court shall retain

28

jurisdiction over it and them for the purposes of enforcing this Order, including but
STIPULATED PROTECTIVE ORDER
10

{Client Files/SIMM01/001/00058245.DOC}

1

not limited to issuing an injunction. In addition to injunctive relief, as specified

2

herein, the Court may impose monetary and/or issue sanctions, as well as other

3

relief deemed appropriate under the circumstances for a violation of this Protective

4

Order.

5

(d)

If any deponent required under the terms of this Protective Order to

6

execute the written Acknowledgment and Agreement described in Paragraph 3(c)

7

above refuses to do so, the Parties may complete the deposition on other matters

8

and/or adjourn it and move the Court for any appropriate relief, including (without

9

limitation) relief from this Protective Order as to that deponent, or an order that the

10

deponent shall execute the written agreement described in Paragraph 3(c) above, or

11

an order that deponent shall be bound by the terms of this Protective Order. Any

12

non-party whose Confidential Information is the subject of such a motion shall be

13

given notice thereof.

14

10.

15

The Parties hereto and their respective attorneys of record agree that, when

16

one Party’s attorney requests a deponent to sign the written Acknowledgment and

17

Agreement described in Paragraph 3(c) above, the other Party’s attorney will join

18

in such request, unless that attorney has a good faith basis for refusing to join in

19

such a request; provided, however, that this requirement shall not apply with

20

respect to any deponent who is represented at his or her deposition by an attorney

21

of record for any Party hereto (including any member or associate of their

22

respective law firms). An attorney’s request to sign such Acknowledgment

23

pursuant to this Paragraph shall not be construed to constitute legal advice to the

24

deponent, but shall and may be stated to be simply a request to facilitate discovery

25

in this action.

AGREEMENT TO COOPERATE

26

11.

27

Neither entering into this Stipulation for Protective Order, nor receiving any

28

documents or other information designated as “Confidential” shall be construed as

NO ADMISSIONS

STIPULATED PROTECTIVE ORDER
11

{Client Files/SIMM01/001/00058245.DOC}

1

an agreement or admission: (1) that any document or information designated as

2

“Confidential” is in fact Confidential Information; (2) as to the correctness or truth

3

of any allegation made or position taken relative to any matter designated as

4

“Confidential”; or (3) as to the authenticity, competency, relevancy or materiality

5

of any information or document designated as “Confidential.”

6

12.

7
8

NO WAIVER OF PRIVILEGES OR OBJECTIONS TO
ADMISSIBILITY

Nothing in this Protective Order shall be construed as requiring disclosure of

9

Confidential Information, including, but not limited to, materials subject to

10

protection under the attorney-client privilege and/or attorney work product

11

doctrine, the trade secrets privilege, or under any other applicable privileges or

12

rights of privacy, or requiring disclosure of Confidential Information that is

13

otherwise beyond the scope of permissible discovery. Further, nothing in this

14

Protective Order shall be construed as a waiver by a Party of any objections that

15

might be raised as to the admissibility at trial of any evidentiary materials.

16

13.

17

If any Confidential Information is disclosed to any person other than in the

DISCLOSURE IN VIOLATION OF ORDER

18

manner authorized by this Protective Order, the party responsible for the disclosure

19

must immediately, in writing, notify the opposing party and the Designating Party

20

of all pertinent facts relating to such disclosure, and without prejudice to the rights

21

and remedies of the Designating Party, make every effort to prevent further

22

unauthorized disclosure.

23

14.

24

Nothing contained herein shall preclude any Party from seeking from a

25

Court modification of this Stipulated Protective Order upon proper notice, nor shall

26

anything contained herein be construed as to preclude the Parties from entering

27

into other written agreements designed to protect Confidential Information.

28

MODIFICATION - FURTHER AGREEMENTS

///
STIPULATED PROTECTIVE ORDER
12

{Client Files/SIMM01/001/00058245.DOC}

1

15.

2

This Stipulation for Protective Order may be executed in counterparts, each

COUNTERPARTS

3

of which shall be deemed an original and which together shall constitute one

4

instrument.

5
6
7
8

DATED: March 3, 2015

APPLETON LAW GROUP, APC

9
10
11
12

By:
13
14

/s/ Cherryl F. Cercado
CHERRYL F. CERCADO
Attorneys for Plaintiff
Timothy Simms

15
16
17

DATED: March 3, 2015

SEYFARTH SHAW LLP

18
19

By:

20
21
22
23
24

/s/ Joshua A. Rodine
JOSHUA A. RODINE
Attorneys for Defendants
Defendants DNC Parks & Resorts at
Tenaya, Inc.; Delaware North
Companies Parks & Resorts, Inc.; and
Delaware North Companies,
Incorporated

25
26
27
28
STIPULATED PROTECTIVE ORDER
13

{Client Files/SIMM01/001/00058245.DOC}

1

EXHIBIT A

2

ACKNOWLEDGMENT OF RECEIPT OF PROTECTIVE ORDER

3

REGARDING CONFIDENTIAL INFORMATION

4

AND AGREEMENT TO BE BOUND THEREBY

5
6

I hereby acknowledge receipt of and that I have read a copy of the

7

Stipulation for Protective Order and Order (the “Order”), which I understand was

8

made on _________________, 2015, in the action entitled TIMOTHY SIMMS v.

9

DNC PARKS & RESORTS AT TENAYA, INC., ET AL., Case No. 1:13-CV-

10

2075-SMS, United States District Court for the Eastern District of California. I

11

agree that I will be bound by the provisions of the Order with respect to any

12

Confidential Information provided to me under the terms thereof. I agree that, if I

13

receive any Confidential Information, I will not make any copies thereof nor

14

disclose such Confidential Information except as permitted by the Order. I further

15

understand that if I fail to comply with the terms of the Order, I may be subject to

16

sanctions by the Court, and I hereby consent to personal jurisdiction in the State of

17

California with respect to any matter relating to or arising out of the Order.

18
19

Executed this _____day of ________, 20___ at ______________________,

20

____________________________.

21
22

Name:

23

Affiliation:

24

Address:

25
26
27

Telephone Number:

28
STIPULATED PROTECTIVE ORDER
14

{Client Files/SIMM01/001/00058245.DOC}

1
2
3
4

ORDER
GOOD CAUSE APPEARING, the Court hereby approves this Stipulation
and Protective Order.
IT IS SO ORDERED.

5
6

Dated: 3/4/2015

/s/ SANDRA M. SNYDER
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
15

{Client Files/SIMM01/001/00058245.DOC}