Brewer v. Skywest Airlines, Inc.

Filing 22

STIPULATED PROTECTIVE ORDER. Order signed by Magistrate Judge Sheila K. Oberto on 1/25/2017. (Thorp, J)

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Gregory M. Saylin (Bar No. 185328)
FABIAN VANCOTT
215 South State Street, Suite 1200
Salt Lake City, UT 84111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorney for SkyWest Airlines, Inc.
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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Plaintiff,

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Case No.: 1:16-cv-01056-LJO-SKO

MARQUISE BREWER,

STIPULATED PROTECTIVE ORDER

v.
SKYWEST AIRLINES, INC.,
Defendant.

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Disclosure and discovery in this action are likely to involve production of confidential,

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proprietary, or private information. Special protection from public disclosure and use for any

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purposes other than prosecuting this litigation may be warranted. The parties acknowledge that

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the Stipulated Protective Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items entitled to confidential treatment under applicable legal

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standards. Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, based upon the

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stipulation of the parties, and good cause appearing, it is hereby ORDERED as follows:

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For purposes of this Protective Order (“Order”):

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a. The term “Confidential Information” shall refer to (a) information relating to

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employee financial information and compensation, and (b) SkyWest’s written

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policies and procedures. There is a particularized need for information in

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each of these categories to be covered by the Order to protect its highly

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sensitive, confidential and private information, including financial information

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relating to third party individuals and policies and procedures created by

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SkyWest as a result of years in the industry. Disclosure could create a

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substantial risk of harm to the parties and/or third parties that could not be

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avoided by less restrictive means. Such Confidential Information may be

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designated as “CONFIDENTIAL” as set forth below.
b. The term “Attorney’s Eyes Only Confidential Information” shall refer to

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information (a) contained in SkyWest employee personnel files, and (b)

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relating to SkyWest’s financial information, including without limitation,

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profit and loss information, invoices and details of costs and expenses,

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information about operations, financial strategy, financial business plans and

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company valuation. There is a particularized need for information in this

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category to be covered by the Order to protect its highly sensitive and

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confidential information, including potentially personal information of third

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parties contained in personnel files and SkyWest’s financial information that

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would provide a strategic advantage if placed in the hands of a competitor.

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Disclosure could create a substantial risk of harm to the parties and/or third

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parties that could not be avoided by less restrictive means. Such Attorney’s

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Eyes Only Confidential Information may be designated as “ATTORNEY’S

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EYES ONLY CONFIDENTIAL” as set forth below.

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c. As required by Civil Local Rule 141.1(c)(3), the parties submit that the above

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protection should be addressed by court order, as opposed to a private

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agreement between or among the parties. The nature of the claims involved in

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this action may require discovery into private information relating to third

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parties and competitively sensitive information. A private agreement between

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the parties would be insufficient to alleviate the parties’ concerns that such

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information remain confidential. Good cause exists for the entry of the Order

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to prevent unauthorized disclosure and use of confidential, proprietary or

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private information during the litigation and after it has been concluded. The

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Order will also facilitate timely production of material from both the parties

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and non-parties. Given these concerns, the parties respectfully request the

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entry of this Order by the Court.

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2.

Confidential Information and/or Attorney’s Eyes Only Confidential Information

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may be found in testimony given at any deposition in this action and in documents and other

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materials produced in discovery, whether informally or in response to interrogatories, requests

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for admissions, requests for productions of documents, subpoena duces tecum, or other discovery

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requests served in this matter.

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3.

Confidential Information and/or Attorney’s Eyes Only Confidential Information

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shall be maintained in confidence in accordance with the provisions of this Protective Order, and

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may be used only for purposes of this proceeding.

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4.

A producing party may designate information as CONFIDENTIAL by placing the

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following legend, or similar legend, on each page of the document or thing: “CONFIDENTIAL.”

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All documents to be so designated shall be designated prior to the transmission of a copy to the

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other party (the “Receiving Party”), unless otherwise agreed in writing between the parties. A

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party may designate as CONFIDENTIAL information contained in a document produced by

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another party or third party by notifying the other parties to this litigation in writing within thirty

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(30) days of receipt of copies of the documents produced.
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A producing party may designate information as ATTORNEY’S EYES ONLY

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CONFIDENTIAL by placing the following legend, or a similar legend, on each page of the

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document or thing: “ATTORNEY’S EYES ONLY CONFIDENTIAL.” All documents so

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designated shall be designated prior to the transmission of a copy to the Receiving Party, unless

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otherwise agreed in writing between the parties. A party may designate as ATTORNEY’S

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EYES ONLY CONFIDENTIAL information contained in a document produced by another party

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or third party by notifying the other parties to this litigation in writing within thirty (30) days of

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receipt of copies of the documents produced.

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6.

Deposition transcripts and exhibits thereto may be designated CONFIDENTIAL

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and/or ATTORNEY’S EYES ONLY CONFIDENTIAL either (i) by written notice to the

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reporter and all counsel of record before the testimony is recorded, (ii) at the deposition on the

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record, or (iii) by written notice to the reporter and all counsel of record within ten (10) days

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after the deposition transcript is received, in which case all counsel receiving such notice shall be

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responsible for appropriately marking the copies of the transcripts in their possession or under

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their control as directed by the designating party. The parties agree that all deposition transcripts

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shall be treated as CONFIDENTIAL until the time for such designation has expired, unless

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agreed to otherwise in writing at the conclusion of the deposition. If a party provides notice of

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confidentiality to the reporter and all counsel of record before testimony is recorded, the party

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claiming the confidentiality shall have the right to have all persons, except those designated in

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paragraphs 8 or 10 below, depending on the designated level of confidentiality, excluded from a

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deposition before taking the deposition testimony.

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Materials produced pursuant to subpoenas duces tecum may be designated as

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CONFIDENTIAL and/or ATTORNEY’S EYES ONLY CONFIDENTIAL either (i) before the

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materials are reproduced by labeling the Confidential Information and/or Attorney’s Eyes Only

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Confidential Information as described above or (ii) by written notice to all counsel of record

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within ten (10) days after the copies of the reproduced materials are received by any party or its

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counsel, in which case all counsel receiving such notice shall be responsible for appropriately

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marking the copies of the Confidential Information and/or Attorney’s Eyes Only Confidential

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Information in their possession or under their control as directed by the designating party.

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Materials designated CONFIDENTIAL may only be disclosed to:

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a. The Court and its personnel;

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b. The parties;

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c. Counsel for the parties and personnel or agents, such as paralegals,

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photocopying services, in-house counsel and staff, and court reporters who are

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actually involved in assisting counsel in the prosecution or defense of this

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action, provided however, that such non-counsel personnel have access to

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Confidential Information only to the extent necessary to perform their duties

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as determined by the representative counsel;

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d. Court reporters involved in transcribing depositions and other proceedings in

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this litigation, and videographers involved in recording depositions, provided

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that such persons are provided Confidential Information only to the extent

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necessary to perform their duties;

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e. Experts whose technical advice and consultations are being used in connection

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with the present litigation, together with their secretarial and clerical

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personnel, provided, however, that such secretarial and clerical personnel have

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access to Confidential Information only to the extent necessary to perform

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their duties; and

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f. Other persons to whom the Court specifically allows disclosure, after
application by the party seeking such disclosure and an opportunity to reply

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by the producing party or parties.
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Confidential Information may be disclosed to any person described in subsections

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8(e) and (f) only after such person has been advised of this Order, and has acknowledged and

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agreed to be bound by the terms hereof by executing a certification in the form attached hereto as

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Exhibit A.

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10.

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Materials designated ATTORNEY’S EYES ONLY CONFIDENTIAL may only

be disclosed to:

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a. The Court and its personnel;

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b. Counsel for the parties and personnel or agents, such as paralegals,

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photocopying services, in-house counsel and staff, and court reporters who are

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actually involved in assisting counsel in the prosecution or defense of this

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action, provided however, that such non-counsel personnel have access to

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Attorney’s Eyes Only Confidential Information only to the extent necessary to

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perform their duties as set determined by the representative counsel;

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c. Court reporters involved in transcribing depositions and other proceedings in

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this litigation, and videographers involved in recording depositions, provided

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that such persons are provided Attorney’s Eyes Only Confidential Information

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only to the extent necessary to perform their duties;

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d. Experts whose technical advice and consultations are being used in connection

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with the present litigation, together with their secretarial and clerical

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personnel, provided, however, that such secretarial and clerical personnel have

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access to Attorney’s Eyes Only Confidential Information only to the extent

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necessary to perform their duties; and

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e. Potential and actual deposition and/or trial witnesses in this case, but only to
the extent the Attorney’s Eyes Only Confidential Information is relevant to

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such witnesses’ testimony.
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Attorney’s Eyes Only Confidential Information may be disclosed to any person

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described in subsections 10(d) and (e) only after such person has been advised of this Order, and

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has acknowledged and agreed to be bound by the terms hereof by executing a certification in the

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form attached hereto as Exhibit A.

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Notwithstanding the above, the confidentiality provisions of this Order shall not

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apply to Confidential Information and/or Attorney’s Eyes Only Confidential Information that is:

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(i) generally available to the public other than as a result of violation of this Order, or (ii)

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available on a non-confidential basis from a source other than the producing party or a party that

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obtained such information pursuant to this Order.
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If at any time prior to trial of this action, a party realizes that material previously

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produced should be designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY

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CONFIDENTIAL, the party may so designate by apprising all of the parties or their counsel in

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writing (“Late-designated Material”), in which case all counsel receiving such notice shall be

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responsible for appropriately marking the copies of the Late-designated Material in their

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possession or under their control as directed by the designating party. Such Late-designated

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Material will thereafter be treated as Confidential Information or Attorney’s Eyes Only

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Confidential Information under the terms of this Order. It shall be understood, however, that no

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person or counsel shall incur any liability hereunder with respect to disclosure that occurred prior

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to receipt of written notice of Late-designated Material.

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Any party intending to submit information designated as CONFIDENTIAL or

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ATTORNEY’S EYES ONLY CONFIDENTIAL with the Court in any form shall file the

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information as private, and in doing so, shall take care such that only that portion of the filing

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that contains the Confidential Information and/or Attorney’s Eyes Only Confidential Information

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is filed as private.

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Nothing in this Order shall be construed to prevent a party to this action from

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opposing the designation of materials as CONFIDENTIAL or ATTORNEY’S EYES ONLY

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CONFIDENTIAL. A party seeking to object to the designation of materials as

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CONFIDENTIAL or ATTORNEY’S EYES ONLY CONFIDENTIAL shall promptly notify the

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other parties in writing. The parties will confer in good faith regarding any dispute over such

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designations prior to seeking assistance from the Court. If the parties are unable to resolve their

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dispute, the party designating the materials as CONFIDENTIAL or ATTORNEY’S EYES

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ONLY CONFIDENTIAL (or any other party seeking to maintain the designation) shall, within

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twenty (20) days after receiving the objecting party’s written objection, move the Court for a

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protective order showing that designation is proper.
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Nothing in this Order shall be deemed to preclude any party from seeking

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additional protection with respect to the confidentiality of documents or other discovery

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materials, as that party may consider appropriate, including the redaction of personal

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information. A party seeking additional protection shall promptly notify the other parties in

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writing. The parties will confer in good faith regarding any dispute over such designations prior

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to seeking assistance from the Court. If the parties are unable to resolve their dispute, the party

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requesting additional protection shall have the burden of requesting additional protection from

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the Court.

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If any person or entity requests or demands, by subpoena, document request or

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otherwise, any Confidential Information and/or Attorney’s Eyes Only Confidential Information

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from any party, the party receiving the request will immediately notify the party that designated

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the document, and shall make reasonable efforts to cooperate with the party in opposing or

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limiting disclosure, including without limitation permitting the designating party the opportunity

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to protect its interest by motion or otherwise in the appropriate forum.

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18.

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

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materials, materials subject to protection under the attorney work product doctrine or any other

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evidentiary privilege or protection, or materials that are otherwise beyond the scope of

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permissible discovery.

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Nothing in this Order shall be construed as a waiver by a party of any objections

that might be raised as to the admissibility of any evidentiary materials at trial.
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Within ninety (90) days after the termination of this litigation, all originals and

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copies of documents designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY

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CONFIDENTIAL shall be either: (i) returned to the respective party or non-party originally

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producing the documents or (ii) destroyed. Certification of such destruction shall be furnished to

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the party that designated the documents as confidential within 30 days of request. However,

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counsel for the parties may retain a file copy of correspondence, filings, and other related

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material, which shall remain subject to the applicable confidentiality protections of this Order.

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This Order shall remain in effect after the final determination of this action. The

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Court shall retain jurisdiction over all persons subject to this Order to the extent necessary to

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enforce any obligations arising hereunder or to impose sanctions for contempt hereof.

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Approved as to form:

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/s/ Lenden Webb (with permission)
Lenden Webb
Attorney for Plaintiff Marquise Brewer

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/s/ Gregory M. Saylin____________
Gregory M. Saylin
Attorney for Defendant SkyWest Airlines, Inc.

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IT IS SO ORDERED.

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Dated:

January 25, 2017

/s/ Sheila K. Oberto

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UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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MARQUISE BREWER,

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Case No.: 1:16-cv-01056-LJO-SKO
ACKNOWLEDGMENT AND
AGREEMENT

Plaintiff,
v.
SKYWEST AIRLINES, INC.,

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Defendant.
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I,

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1.

My address is

.

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2.

My present employer is

.

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3.

My present occupation or job description is

.

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4.

I received a copy of the Protective Order (the “Order”) entered in the above-

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, state that:

captioned action on

.

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5.

I have carefully read and understand the provisions of the Order.

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6.

I will comply with all of the provisions of the Order applicable to me.

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7.

I will hold in confidence, will not disclose to anyone not qualified under the

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Order, and will only use for purposes of this action, any information disclosed to me that is

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marked “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY CONFIDENTIAL”

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(“Confidential Material”).

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I will return all Confidential Material that comes into my possession to the

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counsel for the party by whom I am employed or retained, or, if I have not been employed or

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retained, to counsel from whom I received the Confidential Material.

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9.

I hereby submit to the jurisdiction of this Court for the purposes of enforcement of

the Order in this action.

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Sign Name

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Print Name

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Date

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