Stansbery v. Cargill Meat Solutions Corporation

Filing 13

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Erica P. Grosjean on 8/19/2016. (Rooney, M)

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Jason E. Barsanti (CA Bar No. 235807)
[e-mail]
COZEN O’CONNOR
501 W. Broadway, Suite 1610
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619-234-7831
Helen M. McFarland (CA Bar No. 231501)
[e-mail]
COZEN O’CONNOR
575 Market Street, Suite 2200
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
CARGILL MEAT SOLUTIONS
CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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MICHAEL STANSBERY,

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Plaintiff,
v.

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CARGILL MEAT SOLUTIONS
CORPORATION, a California
corporation; and DOES 1-50, inclusive,

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Defendants.

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LEGAL\27817762\1

Case No. 1:16-cv-00460-DAD-EPG
STIPULATED PROTECTIVE
ORDER BETWEEN CARGILL
MEAT SOLUTIONS
CORPORATION AND
PLAINTIFF MICHAEL
STANSBERY
Honorable Erica P. Grosjean
United States Magistrate Judge

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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action will involve production of

confidential, proprietary, and private information for which special protection from
public disclosure and from use for any purpose other than prosecuting this
litigation may be warranted. The parties assert that information and materials for
which they seek protection should be protected by a Court Order rather than solely

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by private agreement because the Court’s public entry of such an Order would

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carry the weight of this Court’s imprimatur and authorize exercise of its contempt

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powers over potential violators of this Protective Order. A private agreement
would lack that potential deterrent effect, would not provide sufficient remedies in
the event of unwarranted disclosure, and, for those reasons, would not serve to
fully protect the legitimate and substantial interests at issue in this Protective
Order.

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Accordingly, the parties hereby stipulate to and petition the court to 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 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 below,
that this Stipulated Protective Order does not entitle them to file confidential
information under seal; Local Rules set forth the procedures that must be followed
and the standards that will be applied when a party seeks permission from the court
to file material under seal.
2.

DEFINITIONS
2.1

Challenging Party:

a Party that challenges the designation of

information or items under this Order.

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2.2

“CONFIDENTIAL” Information or Items: Materials or information

(regardless of how it is generated, stored or maintained) or tangible things that
qualify for protection under this Stipulated Protective Order shall mean any
documents, materials, items, or information designated by Plaintiff, Defendant, or
any other third party as “Confidential” and is limited to the following categories.
The materials and information in categories (a) and (d) require protection because
they are not disclosed to the public, they are proprietary and commercially
sensitive, they are the product of Defendant’s experience and expertise in its
industry, and the public disclosure of said information to the general public and to

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Defendant’s competitors in particular would place Defendant at a competitive

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disadvantage and harm Defendant’s business. The materials and information in

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categories (b) and (d) require protection in order to safeguard the confidential
personal information of Defendant’s employees, former employees, or other third
parties who are not parties to this lawsuit and the dissemination of that information
has the potential to breach their legally recognized privacy interests and to subject
them to possible identity theft. The materials in category (c) are recognized as
protectable under the Federal Rules of Civil Procedure.

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(a)

confidential, commercially valuable, and/or competitively sensitive nature which is
not in the public domain or disclosed to the public including, but not limited to,
Defendant’s proprietary business plans, facility layouts, operations, and practices;
customer information; proprietary computer systems, databases, and software;
and/or revenue or other financial data and reports;

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any document or item containing information of a proprietary,

(b)

the personnel information of Cargill’s employees, other than the

named plaintiff, or other third parties including but not necessarily limited to work
histories, hiring and separation documentation; performance ratings and/or
evaluations; compensation information including salaries, earnings, pay, bonuses,

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stock options, incentive compensation, and tax and benefit information; bank or
other financial information; contact information including phone numbers, email
addresses, and home addresses; medical and health-related information;
information regarding internal company investigations; and information about
disciplinary actions, including terminations, taken against past or present
employees, and reasons for any such actions.

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(c)

taxpayer identification numbers, birth dates, minor’s names, and financial account
numbers.

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In accordance with FRCP 5.2(d), social security numbers,

(d)

Any portion of deposition transcripts and exhibits thereto,

interrogatory responses, admissions, or other discovery, testimony, or argument, or
any other document or thing, and all information otherwise obtained from a party
pursuant to discovery and/or trial in this litigation which contains the Confidential
Information described in paragraphs (a) through (c) above.
2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information

or items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL”.
2.5

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.6

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.

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2.7

House Counsel does not include Outside Counsel of Record or any other outside
counsel.

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2.9

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are affiliated with a law firm which has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors:

demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.13 Protected Material:

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any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL”.

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persons or entities that provide litigation

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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Outside Counsel of Record: attorneys who are not employees of a

party to this action but are retained to represent or advise a party to this action or

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Non-Party: any natural person, partnership, corporation, association,

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

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House Counsel: attorneys who are employees of a party to this action.

2.14 Receiving Party:

a Party that receives Disclosure or Discovery

Material from a Producing Party.
3.

SCOPE
The protections conferred by this Stipulated Protective Order cover not only

Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulated Protective Order do not
cover any information known to the Receiving Party prior to the disclosure or
obtained by the Receiving Party after the disclosure from a source who obtained
the information lawfully and under no obligation of confidentiality to the
Designating Party.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; or (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of
time pursuant to applicable law.
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 qualifies under the appropriate standards. The Designating Party must
designate for protection only those parts of material, documents, items, or oral or
written communications that qualify – so that other portions of the material,
documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material
that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced.
Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to
each page that contains Protected Material.
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting
Party has indicated which material it would like copied and produced. During the
inspection and 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 documents qualify for protection under this Order. Then, before
producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL” legend to each page that contains Protected Material.

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Manner and Timing of Designations. Except as otherwise provided in

(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party may identify on the record, before the
close of the deposition, hearing, or other proceeding, as protected testimony.
If the Party or Non-Party offering or sponsoring the testimony does not
identify protected testimony on the record, the Party or Non-Party that sponsors,
offers, or gives the testimony shall have up to thirty (30) calendar days following
receipt of the final deposition transcript to identify the specific portions of the
testimony as to which protection is sought. Only those portions of the testimony
that are appropriately designated for protection within the thirty (30) calendar days

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following receipt of the final deposition transcript shall be covered by the
provisions of this Order.
During the period commencing with a deposition session and ending thirty
(30) calendar days following receipt of the final deposition transcript, the Parties
shall afford all information disclosed therein the level of protection designated by
the Designating Party. Only persons authorized under the terms of this Order to
receive Protected Material shall be present during the portions of the deposition
testimony so designated.
Transcript pages containing Protected Material must be separately bound by
the court reporter, who must affix to the top of each such page the legend
“CONFIDENTIAL” as instructed by the Party or Non-Party offering or sponsoring
the witness or presenting the testimony.

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(c) In the case of information produced on electronic media, such as
disks, CDs, DVDs, tapes, etc., designation shall be made by placing the
“CONFIDENTIAL” legend on the exterior of the disk, CD, DVD, tape, or other
media, and such designation shall apply to all contents of the disk, CD, tape or
other media. When information is printed out from such media, the Receiving
Party shall ensure that each page of all copies of the printed-out material bears the
legend.

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(d) For information produced in some form other than documentary,
and for any other tangible items, that the Producing Party affix the
“CONFIDENTIAL” legend on a prominent place on the exterior of the container
or containers in which the information or item is stored. If only portions of the
information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such
material. 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.

Nothing in this Protective Order shall be

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construed to limit a Receiving Party’s right to challenge the designation of material

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or information as “CONFIDENTIAL”.

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Designating Party’s confidentiality designation is necessary to avoid foreseeable,

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Unless a prompt challenge to a

substantial unfairness, unnecessary economic burdens, or a significant disruption
or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of
notice. In conferring, the Challenging Party must explain the basis for its belief that
the confidentiality designation was not proper and must give the Designating Party
an opportunity to review the designated material, to reconsider the circumstances,
and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first, unless the

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Designating Party fails to meet and confer with the Challenging Party within the 14
days of the date of service of the Challenging Party’s written notice of challenge.
If the Designating Party fails to meet and confer within this 14 day period, the
Challenging Party may proceed to the next stage of the challenge.

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6.3

confidentiality designation after considering the justification offered by the
Designating Party may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. Each such motion must
be accompanied by a competent declaration that affirms that the movant has
complied with the meet and confer requirements set forth in the preceding
paragraph. The Designating Party shall have the burden to show that the material
designated as Confidential qualifies as such pursuant to the terms of this Order.

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Judicial Intervention. A Party that elects to press a challenge to a

Until the Court rules on the challenge, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the
Producing Party’s designation.
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 only in connection with
this case and only for prosecuting, defending, or attempting to settle this litigation.
Such Protected Material may be disclosed only to the categories of persons and
under the conditions described in this Order. When the litigation has been
terminated, a Receiving Party must comply with the provisions of section 13 below
(FINAL DISPOSITION).
(a) The Parties agree that, to the extent that they seek to file any Confidential
Material with the Court, the filing Party will request that the Confidential be filed
under seal. However, any such request shall be subject to approval by the Court, for
"compelling reasons," upon noticed motion, pursuant to Local Rule 79-5 and this

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Court's Standing Order, under the standards set forth in Kamakana v. Honolulu, 447
F.3d 1172, 1179 (9th Cir. 2006). Good cause to file under seal must be shown in
any such request.
(b)

Party at a location and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
7.2

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Receiving

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information

or

item

designated

(b) the officers, directors, and employees (including House Counsel)
of the Receiving Party to whom disclosure is reasonably necessary for this
litigation;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, and Professional Vendors to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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any

disclose the information for this litigation;

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disclose

action, as well as employees of said Counsel to whom it is reasonably necessary to

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may

(a) the Receiving Party and the Receiving Party’s Counsel in this

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Party

“CONFIDENTIAL” only to:

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Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party, a

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Protected Material must be stored and maintained by a Receiving

(f) professional jury or trial consultants and mock jurors, to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(g) during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the court. Pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except
as permitted under this Stipulated Protective Order;

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(h) the author or the original source of the information.
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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

that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:
(a) immediately, and in no event more than three court days after receiving
the subpoena or order, notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) immediately 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 or order is subject to this Order. Such notification shall include a copy
of this Stipulated Protective Order; and
(c) cooperate with all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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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

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this action as “CONFIDENTIAL” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in
this action to disobey a lawful directive from another court.
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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

Non-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
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

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The terms of this Order are applicable to information produced by a

(1)

promptly notify in writing the Requesting Party and the Non-

Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2)

Protective Order, the relevant discovery request(s), and a reasonably specific
description of the information requested; and

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(3)

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(c)

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If the Non-Party fails to object or seek a protective order from this

Court within 14 days of receiving the notice and accompanying information, the
Receiving Party 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 confidentiality agreement with the Non-Party before a
determination by the court.1 Absent a court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection of its Protected Material.
10.

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make the Non-Party’s confidential information requested

available for inspection by the Non-Party.

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promptly provide the Non-Party with a copy of this Stipulated

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 Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons
to whom unauthorized disclosures were made of all the terms of this Order, and

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(d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests.
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11.

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PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B).
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.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Order, no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Stipulated
Protective Order. Similarly, no Party waives any right to object on any ground to
use in evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. A Party that seeks to file under seal any Protected Material must comply
with Local Rule 79-5. Protected Material may only be filed under seal pursuant to
a court order authorizing the sealing of the specific Protected Material at issue.
13.

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FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within

60 days after the final disposition of this action, as defined in Paragraph 4, upon
written request by the Designating Party, each Receiving Party must return 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
Material. Whether the Protected Material is returned or destroyed, the Receiving
Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 60 day deadline that (1)
identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda, correspondence, deposition
and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).
///

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: August 19, 2016

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COZEN O’CONNOR
By: /s/ Jason E. Barsanti
One of the Attorneys for Defendants

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Jason E. Barsanti (CA Bar No. 235807)
[e-mail]
COZEN O’CONNOR
575 Market Street, Suite 2200
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

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Dated: August 19, 2016

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MICHAEL J. F SMITH, A
PROFESSIONAL CORPORATION

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By: /s/ John L. Migliazzo

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Michael J. F. Smith
John L. Migliazzo
MICHAEL J. F SMITH, P.C.
1391 West Shaw Avenue, Suite D
Fresno, CA 93711
Tel: [phone]
Fax: [phone]

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ORDER

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The Court has reviewed the above stipulation and adopts it except that the
terms related to judicial intervention outlined in paragraph 6.3 will not be
automatic; rather, the Court will determine on a case-by-case basis whether judicial
intervention is warranted. In order to file a motion under this paragraph, counsel
must receive permission from the Court following an informal telephone
conference.

A party wishing to schedule such a conference should contact

chambers at [phone] to receive available dates. The Court will schedule
the conference as soon as possible, taking into consideration the urgency of the
issue. Prior to the conference, the Court will require the parties to submit letter
briefs of no more than 3 pages in length to chambers for review. Telephonic
conferences will not be on the record and the Court will not issue a formal ruling at
that time. Nevertheless, the Court will attempt to provide guidance to the parties to
narrow or dispose of the dispute. If no resolution is reached, the Court will
consider whether the filing of a formal motion is appropriate.

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The Court amends paragraph 12.3 to refer to the correct Local Rule; Local

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Rule 141 governs requests to file documents under seal in the Eastern District of

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California, not Local Rule 79-5. The Court also approves and adopts the

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“Acknowledgment and Agreement to Be Bound” (ECF No. 12-1) as part of the

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Stipulated Protective Order.

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IT IS SO ORDERED.

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Dated:

August 19, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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