Flores v. ADT LLC

Filing 15

STIPULATED PROTECTIVE ORDER re 14 , signed by Magistrate Judge Jennifer L. Thurston on 8/13/2016. (Hall, S)

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Raul Perez (SBN 174687)
[e-mail]
Arnab Banerjee (SBN 252618)
[e-mail]
Brandon Brouillette (SBN 273156)
[e-mail]
Ruhandy Glezakos (SBN 307473)
[e-mail]
CAPSTONE LAW APC
1840 Century Park East, Suite 450
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Edher Flores

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[ADDITIONAL COUNSEL ON NEXT PAGE]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDHER FLORES, individually, and
on behalf of other members of the
general public similarly situated,

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Plaintiff,

Case No.: 1:16-cv-00029-AWI-JLT
ORDER GRANTING STIPULATED
PROTECTIVE ORDER
(Doc. 14)

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vs.
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ADT LLC, a Delaware limited
liability company; and DOES 1
through 10, inclusive,

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Defendants.
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STIPULATED PROTECTIVE ORDER

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Linda Claxton
Alec R. Hillbo
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Attorneys for Defendant ADT, LLC

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STIPULATED PROTECTIVE ORDER

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Plaintiff Edher Flores (“Plaintiff”) and Defendant ADT LLC (“Defendant”),

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by and through their respective counsel of record, hereby stipulate and agree to the

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following:

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Good Cause Statement
1.

This litigation may require disclosure of what Defendant considers

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private and/or confidential or restricted access information involving Defendant’s

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business policies and practices that would likely cause significant harm to

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Defendant if made available or accessible publicly or to Defendant’s competitors.

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Good cause therefore exists for the issuance of this protective order that will allow

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the parties to engage in discovery in the above-captioned lawsuit while providing a

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means for limiting access to, and disclosure of, private, confidential, and/or trade

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secret information.

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confidentiality of such materials as much as practical during the litigation.

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The purpose of this protective order is to protect the

Definitions And Designation
2.

“Confidential Information” means any information contained in a

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document that is stamped with a “Confidential” designation.

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Information may include, but is not limited to confidential or sensitive company

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proprietary business information, the disclosure of which would create a substantial

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risk of serious, irreparable financial or other injury, and such risk cannot be avoided

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by less restrictive means; and information about current, past or prospective

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employees that is of a confidential or private nature, including current or former

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employees’ wage information and job performance-documentation.

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Access” means any highly sensitive Confidential Information that requires

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heightened protection such as (i) trade secrets and other proprietary information, (ii)

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business methods, plans, or strategies, (iii) current or projected financial

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information (including income, profits, losses, and expenses), marketing, pricing,

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sales and inventory data or strategies, and (iv) identification of business

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relationships.
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STIPULATED PROTECTIVE ORDER

Confidential

“Restricted

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3.

Stamping “Confidential” or “Restricted Access” on the cover of a

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multiple page document shall classify all pages of the document with the same

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designation unless otherwise indicated by the designating party. Such designation

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shall not obscure or interfere with the legibility of the designated Confidential or

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Restricted Access Information. Marking or stamping “Confidential Information” or

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“Restricted Access” on a label on any electronic storage medium shall designate the

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entire contents of such electronic storage medium as Confidential Information or

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Restricted Access.

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4.

Any party that designates material as Confidential Information or

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Restricted Access must take care to limit any such designation to specific material

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that qualifies under the appropriate standards and, where appropriate, must

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designate as Confidential or Restricted Access Information only those parts of

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material, documents, items, or oral or written communications that qualify, so that

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other portions of the material, documents, items, or communications for which

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protection is not warranted are not unjustifiably designated as Confidential or

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Restricted Access Information. Mass, indiscriminate, or routinized designations of

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material as Confidential or Restricted Access Information are prohibited, and

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designations that are shown to be clearly unjustified or that have been made for an

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improper purpose (i.e., to unnecessarily encumber or retard the case development

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

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expose the party making such designations to sanctions.

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Access to Confidential and Restricted Access Information
5.

Confidential or Restricted Access Information produced or received in

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this action subject to this protective order shall not be disclosed by any person who

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has received such Confidential or Restricted Access Information through this action

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except to: the Court, including assigned judges, their staff, jurors and other court

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personnel; court reporters and videographers recording or transcribing testimony in

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this action; vendors, copying services, and contractors; CAPSTONE LAW APC
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STIPULATED PROTECTIVE ORDER

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and OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. and those

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firms’ respective partners, shareholders, associates, paralegals, clerks, and

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employees involved in the conduct of this litigation or who are acting as corporate

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representatives in the litigation and in-house attorneys at Defendant. Restricted

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Access Information also may be disclosed to actual or potential testifying and

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consulting experts (or any person as to whom the designating party agrees in

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writing). Notwithstanding the foregoing, the following designated persons may

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also receive and review Confidential Information:

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a.

Current or former employees of Defendant who may serve as

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witnesses, but only to the extent that the Confidential Information is directly related

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to their expected testimony;

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b.

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Plaintiffs and any other named plaintiff that may be added to

the litigation;

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c.

Any person who was involved in the preparation of the

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document, materials or the discovery responses containing Confidential Information

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or who lawfully received or reviewed the documents or to whom the Confidential

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Information has previously been made available other than by one receiving such

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Confidential Information in connection with this action;

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d.

Actual or prospective experts or consultants, and their staff and

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personnel, who are engaged by counsel for any party to perform investigative work,

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factual research, or other services relating to this action;

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e.

Mediators used to try to resolve the action;

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f.

Any other person ordered by the Court or with the prior written

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consent of the designating party.
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Prior to reviewing any Confidential Information, any person who falls

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within a category identified in Paragraph 5(a)-(f) shall be provided a copy of this

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protective order and shall agree to be bound by its terms by executing the non-

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disclosure agreement in the form set forth in Attachment A. Any actual or potential
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STIPULATED PROTECTIVE ORDER

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testifying and consulting experts identified in Paragraph 5 who receive Restricted

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Access Information also shall execute Attachment A.

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The parties shall retain copies of any executed non-disclosure

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agreements until the end of the action. In the event of a possible violation of this

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protective order while this action is pending, a party may, upon meeting and

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conferring in good faith with the other party, request that the Court order production

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of the executed non-disclosure agreements for good cause. Otherwise, the non-

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disclosure agreements are confidential and are not subject to any discovery request

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while the action is pending. No more than sixty (60) calendar days after the end of

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litigation in the action, the party who received the Confidential Information shall

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provide copies of all executed non-disclosure agreements to the party who produced

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the Confidential Information.

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8.

The action is at an end when all of the following that are applicable

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occur: (a) a final judgment has been entered by the Court or the case has otherwise

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been dismissed with prejudice; (b) the time for any objection to or request for

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reconsideration of such a judgment or dismissal has expired; (c) all available

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appeals have concluded or the time for such appeals has expired; and (d) any post

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appeal proceedings have concluded.

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Use Of Confidential and Restricted Access Information
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Confidential and Restricted Access Information shall be used solely

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and exclusively for preparing for, attempting to settle, and prosecuting this case,

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including the claims brought on behalf of the named plaintiff(s) and hourly or non-

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exempt employees in this case, pending the completion of the judicial process,

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including appeal. Confidential and Restricted Access Information cannot be used

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for any other purpose in any other matter or proceeding for any reason whatsoever.

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However, this Agreement is not intended to be an “agreement restricting a

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member’s practice” in violation of California Rules of Professional Conduct, Rule

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1-500. Accordingly, this Protective Order shall not preclude Plaintiffs’ counsel
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STIPULATED PROTECTIVE ORDER

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from representing any putative class member in connection with their individual

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claims alleged in this action or in an unrelated action if such representation is

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requested, or preclude Plaintiffs’ counsel from providing legal advice to putative

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class members if such advice is requested. Further, if representation or legal advice

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is requested by a putative class member in connection with his or her individual

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claims alleged in this action or in an unrelated action, from that point forward, this

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Protective Order shall not preclude Plaintiffs’ counsel from using the contact

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information of that putative class member for the purposes of such representation or

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provision of legal advice, even if the contact information of that putative class

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member has been designated Confidential under the terms of this Order.
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Nothing in this protective order shall restrict any party’s counsel from

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giving advice to its client with respect to this action and, in the course thereof,

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relying upon Confidential or Restricted Access Information and, provided that in

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giving such advice, counsel shall not disclose the other party’s Confidential or

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Restricted Access Information other than in a manner expressly provided for in this

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protective order.

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Testimony taken at a deposition that involves Confidential or

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Restricted Access Information must be designated as “Confidential” or “Restricted

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Access” by making a statement to that effect on the record at the deposition and

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identifying the specific testimony or items claimed to be Confidential or Restricted

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Access Information. Arrangements shall be made with the deposition reporter

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taking and transcribing information designated as Confidential or Restricted Access

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to bind separately such portions of the deposition transcript, and/or to label such

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portions appropriately. If any portions of the deposition transcript and/or video or

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audio versions of the depositions contain Confidential or Restricted Access

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Information, or references thereto, they must be filed with the Court in compliance

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with this protective order.

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STIPULATED PROTECTIVE ORDER

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12.

A copy of the protective order shall be attached as an exhibit to the

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deposition transcript and the court reporter shall be subject to the protective order

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and precluded from providing the original or copies of portions of the deposition

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transcript that contain Confidential or Restricted Access Information, to any persons

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or entities other than counsel of record in the action. The portions of any audiotape

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and/or videotape containing Confidential or Restricted Access Information from

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said deposition shall also be subject to this protective order.

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videographer shall be subject to this protective order and precluded from providing

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portions of the original deposition videotape containing Confidential or Restricted

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Access Information to any persons or entities other than counsel of record. Any

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audiotape containing Confidential or Restricted Access Information shall also be

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subject to this protective order and all persons shall be precluded from providing the

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original deposition audiotape or portions of the audiotape, to any persons or entities

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other than counsel of record in the action.

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13.

The deposition

Only individuals permitted access to Confidential or Restricted

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Access Information shall attend any deposition where Confidential or Restricted

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Access Information is used.

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Confidential or Restricted Access Information shall not disclose to any person any

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statements made by deponents at depositions that reference Confidential or

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Restricted Access Information unless that person is independently allowed access to

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the information. Nothing in this protective order gives any individual the right to

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attend a deposition that they would not otherwise be entitled to attend.

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Individuals attending any depositions containing

No Waiver And Challenges to Designation
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Whether or not any evidence or testimony is, in fact, designated as

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“Confidential” or “Restricted Access” shall not be conclusive of whether it is

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lawfully entitled to trade secret or other confidentiality protections, and the failure

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to make such a designation shall not constitute a waiver of any such protections.

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STIPULATED PROTECTIVE ORDER

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15.

By entering into this protective order, the parties do not waive any

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right to challenge whether any material designated or not designated as Confidential

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or Restricted Access Information is properly designated or not designated as such,

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and do not waive the right to challenge at any hearing, trial or other proceeding

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whether such information is, in fact, confidential or private. Unless a prompt

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challenge to a confidentiality or restricted access designation is necessary to avoid

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foreseeable, substantial unfairness; unnecessary economic burdens; or a significant

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disruption or delay of the litigation; a party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.
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The burden of persuasion in any proceeding challenging the

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designation of any material as Confidential or Restricted Access Information shall

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be on the party making the designation. Frivolous challenges, and those made for

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an improper purpose (i.e., to harass or impose unnecessary expenses and burdens on

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other parties) may expose the party making the challenge to sanctions. In the event

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of a challenge to the designation of material as Confidential or Restricted Access

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Information, the designating party shall agree to de-designate the Confidential or

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Restricted Access Information or, after meeting and conferring with the objecting

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party, and no later than 60 days after the objection is received, shall file a motion to

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uphold the designation. Failure to bring such a motion within 60 days of receipt of

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the objection shall result in the de-designation of the Confidential or Restricted

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Access Materials. Pending the resolution of such motion, the parties shall continue

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to treat the challenged materials as Confidential Information until the court rules on

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the challenge.

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Filing Under Seal And Handling At Hearings And Trial
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With regard to any Confidential or Restricted Access Information to

be filed with the Court, any party seeking to file such documents shall apply to do

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STIPULATED PROTECTIVE ORDER

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so under seal, in accordance with Federal Rules of Civil Procedure 5.2 and 26, and

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Eastern District Local Rule 141.

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Should the need arise to offer testimony at a hearing or trial to present

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evidence marked as Confidential or Restricted Access that cannot be addressed

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through sealing the evidence, the parties will work in good faith to reach an

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agreement to use a redacted version of the evidence. If they cannot reach an

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agreement, then the designating party will be allowed an opportunity to seek an

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appropriate court order to appropriately restrict what Confidential or Restricted

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Access Information becomes public. Nothing shall prejudice any parties’ rights to

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object to the introduction of any Confidential or Restricted Access Information or

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into evidence, on grounds, including, but not limited to, relevance and privilege.

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Inadvertent Failure To Designate
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If, through inadvertence, any party produces or offers as testimony

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any Confidential or Restricted Access Information without labeling it or otherwise

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designating it as such, the producing party may, at any time, give written notice

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designating such information as Confidential or Restricted Access Information.

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Clawback Provisions
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The parties also wish to protect certain privileged and work product

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documents, information, and electronically stored information against claims of

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waiver in the event they are produced during the course of this litigation, whether

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pursuant to a Court order, a discovery request or informal production.

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21.

The inadvertent production of any document in this action shall be

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without prejudice to any claim that such material is protected by any legally

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cognizable privilege or evidentiary protection including but not limited to the

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attorney-client privilege and/or the work product doctrine, and no party shall be

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held to have waived any rights by such inadvertent production.

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22.

If any document produced by another party is on its face subject to a

legally recognizable privilege or evidentiary protection, the receiving party shall:
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STIPULATED PROTECTIVE ORDER

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(a) refrain from reading the document any more closely than is reasonably

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necessary to ascertain that it is privileged or protected; (b) promptly notify the

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producing party in writing that it has discovered documents believed to be

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privileged or protected; (c) specifically identify the documents by Bates number

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range or other identifying information; and (d) return all hard and soft copies of the

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documents and, where the documents have been transferred or stored electronically,

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delete the documents from the devices on which they are or were stored or accessed

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or otherwise make them inaccessible.

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completed within seven (7) days of discovery by the receiving party.

The steps in this paragraph shall be
The

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producing party shall preserve all document(s) returned under this paragraph until

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the parties agree that there is no dispute about the privileged and/or work product

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nature of the document(s) or, if there is a dispute, until the dispute is resolved.

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Notwithstanding the provisions of this paragraph, the receiving party is under no

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obligation to search or review the producing party’s documents to identify

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potentially privileged or work product protected documents.

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Upon written notice of an unintentional production by the producing

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party or oral notice if notice is delivered on the record at a deposition, the receiving

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party must promptly return all hard and soft copies of the specified document(s).

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Where the document(s) have been transferred or stored electronically or are

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themselves privileged or attorney work product protected, the receiving party must

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delete the documents from the devices on which they are or were stored or accessed

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or otherwise make them inaccessible to the receiving party.

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To the extent that the information contained in a document subject to

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a claim has already been used in or described in other documents generated or

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maintained by the receiving party, then the receiving party must delete and/or

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render inaccessible those portions of the document that refer to the privileged

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and/or work product information. If the receiving party disclosed the specified

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document(s) before being notified of its inadvertent production, it must take
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reasonable steps to retrieve the document(s).

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fourteen (14) days from receipt of notification of the inadvertent production to

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determine in good faith whether to contest such claim and to notify the producing

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party in writing of an objection to the claim of privilege and the grounds for that

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objection.

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25.

The receiving party shall have

The receiving party’s return or destruction of such privileged or

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protected documents as provided herein will not act as a waiver of the receiving

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party’s right to move for the production of the returned or destroyed documents on

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the grounds that the documents are not in fact subject to a viable claim of privilege

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or protection.

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arguing that the production of the documents in this matter acts as a waiver of an

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applicable privilege or evidentiary protection, that the disclosure of the documents

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was not inadvertent, that the producing party did not take reasonable steps to

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prevent the disclosure of the privileged documents, or that the producing party

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failed to take reasonable steps to rectify the error.

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26.

However, the receiving party is prohibited and estopped from

The parties shall meet and confer within seven (7) days from the

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receipt of the objection notice in an effort to resolve the situation by agreement. If

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an agreement is not reached, the receiving party may file an appropriate motion

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within 60 days from receipt of the objection notice and, as part of that motion,

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request that the producing party submit the specified documents to the Court under

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seal for a determination of the claim and will provide the Court with the grounds for

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the asserted privilege or protection except where such a submission would violate

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existing law. Any party may request expedited treatment of any request for the

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Court's determination of the claim.

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Termination Of Case
27.

The terms of this protective order shall survive the final termination of

this action and shall be binding on all of the parties thereafter.

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28.

Within sixty (60) business days of the termination or settlement of this

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action, each party must return, make available for pick-up, or destroy Confidential

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or Restricted Access Information received during this litigation from the other party

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and copies of any deposition transcripts designated as Confidential or Restricted

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Access Information. Where Confidential or Restricted Access Information has

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been transferred or stored electronically, the receiving party must delete the

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electronic versions from the devices on which they are or were stored or accessed or

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otherwise make them inaccessible to the receiving party. Notwithstanding these

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provisions, that counsel of record for the parties may retain an archival copy of all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, consultant and expert work product, and those copies of any part of

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the Confidential or Restricted Access Information that have become part of the

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official record of this litigation and may retain abstracts or summaries of such

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materials, which contain counsel’s mental impressions or opinions.

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information shall remain subject to the terms of this protective order.

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Such

Miscellaneous Provisions
29.

The parties expressly agree that, by entering into this protective order,

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they do not waive any objections to any discovery requests and, further, that they do

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not agree to the production of any information or documents, or type or category of

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information or documents.

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30.

This protective order is subject to modification by stipulation of the

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parties. The Court may modify the terms and conditions of this protective order for

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good cause, or in the interest of justice, or on its own order at any time in these

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proceedings. The parties request that the Court provide them with notice of the

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Court's intent to modify the protective order and the content of those modifications,

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prior to incorporate of such modifications.

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STIPULATED PROTECTIVE ORDER

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IT IS SO STIPULATED.

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Dated: August 12, 2016

CAPSTONE LAW, APC

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By: /s/ Arnab Banerjee
Raul Perez
Arnab Banerjee
Brandon Brouillette
Ruhandy Glezakos

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Attorneys for Plaintiff Edher Flores

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Dated: August 13, 2016

OGLETREE, DEAKINS, NASH,
SMOAK & STEWART P.C.

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By: /s/ Alec R. Hilbo (as authorized on 8/12/16)
Linda Claxton
Alec R. Hillbo
Fontaine Yuk

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Attorneys for Defendant ADT, LLC

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IT IS SO ORDERED.
Dated:

August 13, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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ATTACHMENT A

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CONFIDENTIAL OR RESTRICTED ACCESS INFORMATION NON-

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DISCLOSURE AGREEMENT

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1.

I have had the opportunity to review the protective order in this

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action, and I agree that I am one of the following: (a) a current or former

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employee of ADT LLC who has been asked to serve as a witness on an issue

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related to the Confidential Information that I am receiving or being shown; (b) a

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named plaintiff to the action; (c) a person who was involved in the preparation of

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the document, materials or the discovery responses containing Confidential

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Information or who lawfully received or reviewed the documents or to whom the

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Confidential Information has previously been made available other than by receipt

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of such Confidential Information in connection with this action; (d) an expert or

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consultant who has been engaged by counsel for any party to perform

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investigative work, factual research, or other services relating to this action; (e) a

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mediator used to try to resolve the action; or (f) a person who the parties to the

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action have agreed in writing may receive Confidential Information, or a person

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who was ordered by the Court to receive Confidential Information. I also may be

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an actual or potential testifying or consulting expert (or another person as to whom

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the designating party agreed in writing) who received Restricted Access

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Information.

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2.

I agree not to disclose any of the Confidential or Restricted Access

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Information to any third person and further agree that my use of any Confidential

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or Restricted Access Information shall only be for the prosecution, defenses,

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discovery, mediation and/or settlement of this action, and not for any other

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purpose. I further agree that on or before the termination or settlement of this

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action, I will return all Confidential or Restricted Access Information which is in

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my possession, custody, or control to the attorneys involved in the action so that it

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can be returned as provided in the protective order.
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3.

By signing this Confidential or Restricted Access Information Non-

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Disclosure Agreement, I stipulate to the jurisdiction of this Court to enforce the

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terms of this Agreement.

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___________________________________
SIGNED
___________________________________
PRINT NAME

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25801365.1

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