Morales et al v. Leggett & Platt Incorporated et al

Filing 23

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 10/27/2016. (Zignago, K.)

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STAN S. MALLISON (SBN 184191)
[e-mail]
HECTOR R. MARTINEZ (SBN 206336)
[e-mail]
MARCO A. PALAU (SBN 242340)
[e-mail]
JOSEPH D. SUTTON (269951)
[e-mail]
ERIC S. TRABUCCO (295473)
[e-mail]
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, California 94612-3547
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDGAR MORALES, SALVADOR
MAGAÑA, AND MATTHEW BAGU on
behalf of themselves, the State of
California, and all other similarly
situated individuals,
PLAINTIFFS,
v.
LEGGETT & PLATT INCORPORATED,
a Missouri Corporation, L&P
FINANCIAL SERVICES CO., a
Delaware Corporation, and DOES 2-20,
inclusive,
DEFENDANTS.

Case No. 2:15-cv-01911-JAM-EFB
STIPULATED [PROPOSED]
PROTECTIVE ORDER
Complaint Filed:

April 23, 2015

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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, and/or private information for which special protection from

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, the parties hereby stipulate to and petition the court

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to enter the following Stipulated Protective Order pertaining to material of a

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confidential, personal, private, sensitive, or non-public nature, including any of

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Defendants’ non-public proprietary, business, financial, or commercially sensitive

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information, and including such information pertaining to putative class members or

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other current and/or former employees of Defendants, which ordinarily would be kept

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confidential and not disclosed by Defendants, including that in the following categories:

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information maintained in personnel files; information concerning employee

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compensation, payroll and benefits to the extent the information is not generally

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applicable to all employees; social security numbers, home telephone numbers and

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addresses of Defendants’ current and former employees, and information reflected

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outside of employees’ personnel files but concerning discipline, employee evaluations

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and other documents concerning employee performance, employee concerns,

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investigations, injuries, absences, and reasons for termination. Public disclosure of

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these categories of confidential information maintained on putative class members and

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other current and former employees of Defendants may cause embarrassment and/or

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financial or competitive harm to an individual who is the subject of such information.

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The parties have agreed that entry of a protective order will assist in the flow of

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discovery materials, facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, protect and ensure the confidential treatment of information, and

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ensure that the parties are permitted reasonably necessary uses of such materials in

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prosecuting, defending, or attempting to settle this litigation and any appeals arising

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therefrom.

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The parties acknowledge that this Order does not confer blanket protections on

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all disclosures or responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further

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acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Civil Local Rule 141

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sets forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how

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it is generated, stored or maintained) or tangible things that qualify for protection

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under Federal Rule of Civil Procedure 26(c).

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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

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation and who may serve as an expert witness or as a consultant in

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this action.

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2.7

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

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

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counsel.
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2.8

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

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other legal entity not named as a Party to this action, including putative class

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members not specifically named in the case caption.
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Outside Counsel of Record: attorneys who are not employees of a party to

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

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appeared in this action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party, including the employees and staff of Outside

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Counsel of Record.
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Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (including

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employees and agents of Outside Counsel of Record).
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Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this action.
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Professional Vendors: persons or entities that provide litigation support

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

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.
2.13

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Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.14

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Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. A Designating Party may designate as

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Protected Material material that is produced informally or in response to formal
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discovery in the course of the litigation. However, the protections conferred by this

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Stipulation and Order do not cover the following information: (a) any information that

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is in the public domain at the time of disclosure to a Receiving Party or becomes part of

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the public domain after its disclosure to a Receiving Party as a result of publication not

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involving a violation of this Order, including becoming part of the public record

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through trial or otherwise; and (b) any information known a Party prior to the

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disclosure or obtained by the Party after the disclosure from a source who obtained the

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information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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4.

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

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

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without prejudice; and (2) final judgment herein after the completion and exhaustion of

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all appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to applicable

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law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify – so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.
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Mass, indiscriminate, or routinized designations are prohibited. If it comes to a

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Designating Party’s attention that information or items that it designated for

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protection do not qualify for protection, that Designating Party must promptly notify

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all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order shall be made in the following
manner:

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(a) in the case of information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial proceedings): by

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affixing the legend “CONFIDENTIAL” to each page that contains Protected Material.

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A Party or Non-Party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the inspection

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and before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it

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wants copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to

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each page that contains Protected Material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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(b) in the case of testimony given in deposition or in other pretrial

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proceedings: (i) by a statement on the record, by counsel for the Designating Party,

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before the close of the deposition, hearing, or other proceeding, that any particular

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testimony shall be treated as Confidential Information. In that event, the reporter
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shall separately transcribe any such portion of the testimony; or (ii) by written notice,

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sent by counsel to all parties within twenty-one (21) business days after receiving a

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copy of the deposition transcript, that any particular testimony shall be treated as

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Confidential Information.

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(c) in the case of information produced in some form other than documentary

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and for any other tangible items: by affixing in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.”
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Inadvertent Failures to Designate. If timely corrected upon discovery of

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the error, an inadvertent failure to designate qualified information or items does not,

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standing alone, waive the Designating Party’s right to secure protection under this

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Order for such material. Such correction and notice thereof shall be made in writing,

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and the Designating Party shall promptly substitute copies of each item appropriately

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marked. After the Receiving Party receives such notice, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order. Within thirty (30) days after receipt of the corrected copies,

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unless the Designating Party agrees otherwise, the Receiving Party shall return the

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previously unmarked items and all copies thereof or destroy the same and certify, upon

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request of the Designating Party, the destruction to counsel for the Designating Party.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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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
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describing the basis for each challenge. To avoid ambiguity as to whether a challenge

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has been made, the written notice must recite that the challenge to confidentiality is

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being made in accordance with this specific paragraph of the Protective Order. The

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parties shall attempt to resolve each challenge in good faith and must begin the process

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by conferring directly (in voice to voice dialogue; other forms of communication are not

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sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not

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proper and must give the Designating Party an opportunity to review the designated

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material, to reconsider the circumstances, and, if no change in designation is offered, to

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explain the basis for the chosen designation. A Challenging Party may proceed to the

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next stage of the challenge process only if it has engaged in this meet and confer

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process first or establishes that the Designating Party is unwilling to participate in the

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meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality under Civil Local Rule 230 within 21 days of the initial notice of

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challenge or within 14 days of the parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21

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days (or 14 days, if applicable) shall automatically waive the confidentiality

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designation for each challenged designation. In addition, the Challenging Party may

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file a motion challenging a confidentiality designation at any time if there is good cause

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for doing so, including a challenge to the designation of a deposition transcript or any

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portions thereof. Any motion brought pursuant to this provision must be accompanied

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by a competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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

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the Challenging Party to sanctions. Unless the Designating Party has waived the

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confidentiality designation by failing to file a motion to retain confidentiality as

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described above, all parties shall continue to afford the material in question the level of

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protection to which it is entitled under the Producing Party’s designation until the

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court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this case

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only for prosecuting, defending, or attempting to settle this litigation and any appeals

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arising therefrom or any bankruptcy proceedings of the Defendants in this action, and

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for no other purpose whatsoever. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order. When the

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litigation has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party and the Receiving Party’s Outside Counsel of Record

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in this action, as well as employees of and Professional Vendors hired by said Outside

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Counsel of Record to whom it is reasonably necessary to disclose the information for

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this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c) Experts (as defined in this Order) to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);
(d) the Court and its personnel, as well as any mediator that the parties have

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agreed in writing to use or have been ordered to use in connection with this action;
(e) court reporters and their staff, professional jury or trial consultants, mock

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jurors, and Professional Vendors who have been retained by a party or counsel of

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record for purposes of assisting in this litigation and to whom disclosure is reasonably

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necessary for this litigation;
(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by

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the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound and identified by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order;
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew of the information prior to

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its designation as CONFIDENTIAL in this action;
(h) the employee or putative class member to whom the Protected Material

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pertains. Neither the Receiving Party nor his/its counsel may show or disclose to an

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employee or putative class member Protected Material pertaining to other employees

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or putative class members.

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7.3

Material designated as “CONFIDENTIAL” may be provided to persons

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listed in paragraphs 7(c) and (f) above provided that such person confirms his or her

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understanding and agreement to abide by the terms of this Stipulation and Order by

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signing an “Acknowledgment and Agreement to Be Bound” in the form attached
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hereto as Exhibit A. The signed “Acknowledgment and Agreement to Be Bound”

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shall be maintained by counsel for the Receiving Party who seeks to disclose such

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Confidential Information and a copy shall be provided to the Designating Party upon

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agreement of the parties or order by the Court.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena, other compulsory process or a court order

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issued in other litigation that compels disclosure of any information or items

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designated in this action as “CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party within five (5) business

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days (or before the date for compliance if earlier) identifying the Confidential

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Information sought and enclosing a copy of the subpoena, other compulsory process or

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court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this action

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as “CONFIDENTIAL” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material – and nothing in these provisions should be construed

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as authorizing or encouraging a Receiving Party in this action to disobey a lawful

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directive from another court.

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9.

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

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(a) The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting

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a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party

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

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with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party.
(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving Party

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shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately use its best efforts

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to retrieve all unauthorized copies of the Protected Material, inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and request such person or persons to execute the “Acknowledgment and Agreement to

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Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED

MATERIAL

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Inadvertent failure to designate documents, testimony or things as Protected

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Material does not waive the Designating Party’s right to secure the protections of this

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Stipulated Protective Order. When a Producing Party gives notice to Receiving Parties

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that certain inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal Rule

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of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever

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procedure may be established in an e-discovery order that provides for production

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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d), the

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disclosure of a communication or information covered by the attorney-client privilege or

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work product protection is not a waiver of privilege or protection from discovery in this

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case or in any other federal or state proceeding. The inadvertent disclosure or

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inadvertent failure to designate as confidential by a Designating Party of documents or

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information that party believes to be Protected Material shall not be deemed a waiver

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in whole or in part of any party’s claim of confidentiality, either as to a specific

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document or information disclosed or as to any other document or information relating

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thereto or concerning the same or related subject matter.

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12.

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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.

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12.2

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Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.
12.3

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Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file under seal any Protected Material must comply with Civil

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Local Rule 141. Protected Material may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue. If a Receiving

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Party’s request to file Protected Material under seal pursuant to Civil Local Rule 141 is

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denied by the court, then the Receiving Party may file the information in the public

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record pursuant to Civil Local Rule 133 unless otherwise instructed by the court.
12.4

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No Limit on a Party’s Own Use. Nothing herein shall be construed to

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limit a producing party’s use or disclosure of its own Protected Material. This

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Stipulation and Order has no effect upon, and shall not apply to, the producing

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party’s use of its own Protected Material.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, including the expirations

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or exhaustion of all rights to appeal this and any and all related actions, as defined in

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paragraph 4, each Receiving Party must, at the election of the Receiving Party, either

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return all Protected Material to the Producing Party or destroy such material.

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However, counsel may retain Protected Material for the length of time required by

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counsel’s malpractice carrier. As used in this subdivision, “all Protected Material”

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includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected

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Material is returned or destroyed, if requested by the Producing Party, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same

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person or entity, to the Designating Party) that affirms that the Receiving Party has

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not retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
MALLISON & MARTINEZ

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DATED: October 14, 2016

By: /s/ Marco A. Palau
Attorney for Plaintiffs

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SHOOK HARDY & BACON L.L.P.

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DATED: October 14, 2016

By: /s/ Carri A. McAtee
Attorneys for Defendants

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: October 27, 2016.

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print

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or type full address], declare under penalty of perjury that I have read in its entirety

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and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Eastern District of California on [date] in the case of Edgar

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Morales et al. v. Leggett & Platt Incorporated et al., Case No. 2:15-cv-01911-JAM-EFB.

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I agree to comply with and to be bound by all the terms of this Stipulated Protective

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Order and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the provisions

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of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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