Fitzpatrick v. Tyson Foods, Inc.

Filing 12

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 12/11/2015. (Donati, J)

1 Frank C. Rothrock (SBN: 54452)
[e-mail]
2 Amir Nassihi (SBN: 235936)
[e-mail]
3 Naoki S. Kaneko (sbn: 252285)
[e-mail]
4 SHOOK, HARDY & BACON L.L.P.
5 Park Plaza, Suite 1600
5 Irvine, California 92614
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys For Defendant Tyson Foods, Inc.
8 John E. Norris (admitted Pro Hac Vice)
[e-mail]
9 Davis & Norris, LLP
2154 Highland Ave. S.
10 Birmingham, Alabama 35205
Telephone: [phone]
11 Facsimile: [phone]
12 Attorneys for Plaintiff
13

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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16 SUSAN FITZPATRICK, on behalf of
herself and all others similarly situated,
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Plaintiff,
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vs.
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TYSON FOODS, INC.,
20
Defendant.
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Case No. 2:15-cv-02285-TLN-KJN
Judge: Hon. Kendall J. Newman
Ctrm.: 25
STIPULATED PROTECTIVE
ORDER

Complaint filed: November 4, 2015

24
25 1.

PURPOSES AND LIMITATIONS

26

Disclosure and discovery activity in this action are likely to involve production

27 of confidential, proprietary, or private information for which special protection from
28 public disclosure and from use for any purpose other than prosecuting this litigation
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STIPULATED PROTECTIVE ORDER
300836 v2

1 may be warranted. Pursuant to Local Rules 137(b) and 143, the parties hereby
2 stipulate to and petition the court to enter the following Stipulated Protective Order.
3 The parties acknowledge that this Order does not confer blanket protections on all
4 disclosures or responses to discovery and that the protection it affords from public
5 disclosure and use extends only to the limited information or items that are entitled to
6 confidential treatment under the applicable legal principles. The parties further
7 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order
8 does not entitle them to file confidential information under seal; Local Rule 141 sets
9 forth the procedures that must be followed and the standards that will be applied
10 when a party seeks permission from the court to file material under seal.
11 2.

DEFINITIONS

12

2.1

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

13 designation of information or items under this Order.
14

2.2

“CONFIDENTIAL” Information or Items: information (regardless of

15 how it is generated, stored or maintained) or tangible things that qualify for
16 protection under Federal Rule of Civil Procedure 26(c).
17

2.3

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

18 Counsel (as well as their support staff).
19

2.4

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

20 items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL.”
22

2.5

Disclosure or Discovery Material: all items or information, regardless of

23 the medium or manner in which it is generated, stored, or maintained (including,
24 among other things, testimony, transcripts, and tangible things), that are produced or
25 generated in disclosures or responses to discovery in this matter.
26

2.6

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

27 pertinent to the litigation who has been retained by a Party or its counsel to serve as
28 an expert witness or as a consultant in this action.
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STIPULATED PROTECTIVE ORDER

1

2.7

In-House Counsel: attorneys who are employees of a party to this

2 action. In-House Counsel does not include Outside Counsel of Record or any
3 other outside counsel.
4

2.8

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

5 other legal entity not named as a Party to this action.
6

2.9

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

7 to this action but are retained to represent or advise a party to this action and have
8 appeared in this action on behalf of that party or are affiliated with a law firm which
9 has appeared on behalf of that party.
10

2.10 Party: any party to this action, including all of its officers, directors,

11 employees, consultants, retained experts, and Outside Counsel of Record (and
12 their support staffs).
13

2.11 Producing Party: a Party or Non-Party that produces Disclosure or

14 Discovery Material in this action.
15

2.12 Professional Vendors: persons or entities that provide litigation support

16 services (e.g., photocopying, videotaping, translating, preparing exhibits or
17 demonstrations, and organizing, storing, or retrieving data in any form or medium)
18 and their employees and subcontractors.
19

2.13 Protected Material: any Disclosure or Discovery Material that is

20 designated as “CONFIDENTIAL.”
21

2.14 Receiving Party: a Party that receives Disclosure or Discovery

22 Material from a Producing Party.
23 3.

SCOPE

24

The protections conferred by this Stipulation and Order cover not only

25 Protected Material (as defined above), but also (1) any information copied or extracted
26 from Protected Material; (2) all copies, excerpts, summaries, or compilations of
27 Protected Material; and (3) any testimony, conversations, or presentations by Parties
28 or their Counsel that might reveal Protected Material. However, the protections
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STIPULATED PROTECTIVE ORDER

1 conferred by this Stipulation and Order do not cover the following information: (a)
2 any information that is in the public domain at the time of disclosure to a Receiving
3 Party or becomes part of the public domain after its disclosure to a Receiving Party as
4 a result of publication not involving a violation of this Order, including becoming part
5 of the public record through trial or otherwise; and (b) any information known to the
6 Receiving Party prior to the disclosure or obtained by the Receiving Party after the
7 disclosure from a source who obtained the information lawfully and under no
8 obligation of confidentiality to the Designating Party. Any use of Protected Material at
9 trial shall be governed by a separate agreement or order.
10 4.

DURATION

11

Even after final disposition of this litigation, the confidentiality obligations

12 imposed by this Order shall remain in effect until a Designating Party agrees
13 otherwise in writing or a court order otherwise directs. Final disposition shall be
14 deemed to be the later of (1) dismissal of all claims and defenses in this action, with or
15 without prejudice; and (2) final judgment herein after the completion and exhaustion
16 of all appeals, rehearings, remands, trials, or reviews of this action, including the time
17 limits for filing any motions or applications for extension of time pursuant to
18 applicable law.
19 5.

DESIGNATING PROTECTED MATERIAL

20

5.1

Exercise of Restraint and Care in Designating Material for Protection.

21 Each Party or Non-Party that designates information or items for protection under this
22 Order must take care to limit any such designation to specific material that qualifies
23 under the appropriate standards. The Designating Party must designate for protection
24 only those parts of material, documents, items, or oral or written communications that
25 qualify – so that other portions of the material, documents, items, or communications
26 for which protection is not warranted are not swept unjustifiably within the ambit of
27 this Order.
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STIPULATED PROTECTIVE ORDER

1

Mass, indiscriminate, or routinized designations are prohibited. Designations

2 that are shown to be clearly unjustified or that have been made for an improper
3 purpose (e.g., to unnecessarily encumber or retard the case development process or to
4 impose unnecessary expenses and burdens on other parties) expose the Designating
5 Party to sanctions.
6

If it comes to a Designating Party’s attention that information or items that it

7 designated for protection do not qualify for protection, that Designating Party must
8 promptly notify all other Parties that it is withdrawing the mistaken designation.
9

5.2

Manner and Timing of Designations. Except as otherwise provided in

10 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
12 under this Order must be clearly so designated before the material is disclosed or
13 produced.
14
15

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

16 documents, but excluding transcripts of depositions or other pretrial or trial
17 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
18 page that contains protected material. If only a portion or portions of the material on a
19 page qualifies for protection, the Producing Party also must clearly identify the
20 protected portion(s) (e.g., by making appropriate markings in the margins).
21 A Party or Non-Party that makes original documents or materials available for
22 inspection need not designate them for protection until after the inspecting Party has
23 indicated which material it would like copied and produced. During the inspection
24 and before the designation, all of the material made available for inspection shall be
25 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
26 it wants copied and produced, the Producing Party must determine which documents,
27 or portions thereof, qualify for protection under this Order. Then, before producing
28 the specified documents, the Producing Party must affix the “CONFIDENTIAL”
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STIPULATED PROTECTIVE ORDER

1 legend to each page that contains Protected Material. If only a portion or portions of
2 the material on a page qualifies for protection, the Producing Party also must clearly
3 identify the protected portion(s) (e.g., by making appropriate markings in the
4 margins).
5

(b) for testimony given in deposition or in other pretrial or trial proceedings,

6 that the Designating Party identify on the record, before the close of the deposition,
7 hearing, or other proceeding, all protected testimony.
8

(c) for information produced in some form other than documentary and for

9 any other tangible items, that the Producing Party affix in a prominent place on the
10 exterior of the container or containers in which the information or item is stored the
11 legend “CONFIDENTIAL.” If only a portion or portions of the information or item
12 warrant protection, the Producing Party, to the extent practicable, shall identify the
13 protected portion(s).
14

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

15 failure to designate qualified information or items does not, standing alone, waive the
16 Designating Party’s right to secure protection under this Order for such material.
17 Upon timely correction of a designation, the Receiving Party must make reasonable
18 efforts to assure that the material is treated in accordance with the provisions of this
19 Order.
20 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

21

6.1

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

22 designation of confidentiality at any time. Unless a prompt challenge to a Designating
23 Party’s confidentiality designation is necessary to avoid foreseeable, substantial
24 unfairness, unnecessary economic burdens, or a significant disruption or delay of the
25 litigation, a Party does not waive its right to challenge a confidentiality designation
26 by electing not to mount a challenge promptly after the original designation is
27 disclosed.
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STIPULATED PROTECTIVE ORDER

1

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

2 resolution process by providing written notice of each designation it is challenging
3 and describing the basis for each challenge. To avoid ambiguity as to whether a
4 challenge has been made, the written notice must recite that the challenge to
5 confidentiality is being made in accordance with this specific paragraph of the
6 Protective Order. The parties shall attempt to resolve each challenge in good faith and
7 must begin the process by conferring directly (in voice to voice dialogue; other forms
8 of communication are not sufficient) within 14 days of the date of service of notice.
9 In conferring, the Challenging Party must explain the basis for its belief that the
10 confidentiality designation was not proper and must give the Designating Party an
11 opportunity to review the designated material, to reconsider the circumstances, and,
12 if no change in designation is offered, to explain the basis for the chosen designation.
13 A Challenging Party may proceed to the next stage of the challenge process only if it
14 has engaged in this meet and confer process first or establishes that the Designating
15 Party is unwilling to participate in the meet and confer process in a timely manner.
16

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

17 court intervention, the Designating Party shall file and serve a motion to retain
18 confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule
19 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days
20 of the parties agreeing that the meet and confer process will not resolve their dispute,
21 whichever is earlier. Each such motion must be accompanied by a competent
22 declaration affirming that the movant has complied with the meet and confer
23 requirements imposed in the preceding paragraph. Failure by the Designating Party to
24 make such a motion including the required declaration within 21 days (or 14 days, if
25 applicable) shall automatically waive the confidentiality designation for each
26 challenged designation. In addition, the Challenging Party may file a motion
27 challenging a confidentiality designation at any time if there is good cause for doing
28 so, including a challenge to the designation of a deposition transcript or any portions
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STIPULATED PROTECTIVE ORDER

1 thereof. Any motion brought pursuant to this provision must be accompanied by a
2 competent declaration affirming that the movant has complied with the meet and
3 confer requirements imposed by the preceding paragraph.
4

The burden of persuasion in any such challenge proceeding shall be on the

5 Designating Party. Frivolous challenges, and those made for an improper purpose
6 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
7 expose the Challenging Party to sanctions. Unless the Designating Party has waived
8 the confidentiality designation by failing to file a motion to retain confidentiality as
9 described above, all parties shall continue to afford the material in question the level
10 of protection to which it is entitled under the Producing Party’s designation until the
11 court rules on the challenge.
12 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

13

7.1

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

14 disclosed or produced by another Party or by a Non-Party in connection with this case
15 only for prosecuting, defending, or attempting to settle this litigation. Such Protected
16 Material may be disclosed only to the categories of persons and under the conditions
17 described in this Order. When the litigation has been terminated, a Receiving Party
18 must comply with the provisions of section 13 below (FINAL DISPOSITION).
19

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

20 location and in a secure manner that ensures that access is limited to the persons
21 authorized under this Order.
22

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

23 otherwise ordered by the court or permitted in writing by the Designating Party, a
24 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
25 only to:
26

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

27 employees of said Outside Counsel of Record to whom it is reasonably necessary to
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STIPULATED PROTECTIVE ORDER

1 disclose the information for this litigation and who have signed the “Acknowledgment
2 and Agreement to Be Bound” that is attached hereto as Exhibit A;
3

(b) the officers, directors, and employees (including In-House Counsel) of

4 the Receiving Party to whom disclosure is reasonably necessary for this litigation
5 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
6 A);
7

(c) Experts (as defined in this Order) of the Receiving Party to whom

8 disclosure is reasonably necessary for this litigation and who have signed the
9 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10

(d) the court and its personnel;

11

(e) court reporters and their staff, professional jury or trial consultants,

12 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
13 for this litigation and who have signed the “Acknowledgment and Agreement to Be
14 Bound” (Exhibit A);
15

(f) during their depositions, witnesses in the action to whom disclosure is

16 reasonably necessary and who have signed the “Acknowledgment and Agreement to
17 Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
18 by the court. Pages of transcribed deposition testimony or exhibits to depositions that
19 reveal Protected Material must be separately bound by the court reporter and may not
20 be disclosed to anyone except as permitted under this Stipulated Protective Order.
21

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

22 custodian or other person who otherwise possessed or knew the information.
23 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

24

IN OTHER LITIGATION

25

If a Party is served with a subpoena or a court order issued in other litigation

26 that compels disclosure of any information or items designated in this action as
27 “CONFIDENTIAL,” that Party must:
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STIPULATED PROTECTIVE ORDER

1

(a) promptly notify in writing the Designating Party. Such notification

2 shall include a copy of the subpoena or court order;
3

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

4 issue in the other litigation that some or all of the material covered by the subpoena or
5 order is subject to this Protective Order. Such notification shall include a copy of this
6 Stipulated Protective Order; and
7

(c) cooperate with respect to all reasonable procedures sought to be

8 pursued by the Designating Party whose Protected Material may be affected.
9

If the Designating Party timely seeks a protective order, the Party served with

10 the subpoena or court order shall not produce any information designated in this
11 action as “CONFIDENTIAL” before a determination by the court from which the
12 subpoena or order issued, unless the Party has obtained the Designating Party’s
13 permission. The Designating Party shall bear the burden and expense of seeking
14 protection in that court of its confidential material – and nothing in these provisions
15 should be construed as authorizing or encouraging a Receiving Party in this action
16 to disobey a lawful directive from another court.
17 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

18

PRODUCED IN THIS LITIGATION

19

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

20 Party in this action and designated as “CONFIDENTIAL.” Such information
21 produced by Non-Parties in connection with this litigation is protected by the
22 remedies and relief provided by this Order. Nothing in these provisions should be
23 construed as prohibiting a Non-Party from seeking additional protections.
24

(b) In the event that a Party is required, by a valid discovery request, to

25 produce a Non-Party’s confidential information in its possession, and the Party is
26 subject to an agreement with the Non-Party not to produce the Non-Party’s
27 confidential information, then the Party shall:
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STIPULATED PROTECTIVE ORDER

1

(1)

promptly notify in writing the Requesting Party and the Non-

2 Party that some or all of the information requested is subject to a confidentiality
3 agreement with a Non-Party;
4

(2)

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

5 Protective Order in this litigation, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7

(3)

make the information requested available for inspection by the

8 Non-Party.
9

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

10 within 14 days of receiving the notice and accompanying information, the Receiving
11 Party may produce the Non-Party’s confidential information responsive to the
12 discovery request. If the Non-Party timely seeks a protective order, the Receiving
13 Party shall not produce any information in its possession or control that is subject to
14 the confidentiality agreement with the Non-Party before a determination by the court.
15 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
16 of seeking protection in this court of its Protected Material.
17 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

18

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

19 Protected Material to any person or in any circumstance not authorized under this
20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
21 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
22 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
23 persons to whom unauthorized disclosures were made of all the terms of this Order,
24 and (d) request such person or persons to execute the “Acknowledgment and
25 Agreement to Be Bound” that is attached hereto as Exhibit A.
26 ///
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STIPULATED PROTECTIVE ORDER

1 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

2

PROTECTED MATERIAL

3

When a Producing Party gives notice to Receiving Parties that certain

4 inadvertently produced material is subject to a claim of privilege or other protection,
5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
7 may be established in an e-discovery order that provides for production without prior
8 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
9 parties reach an agreement on the effect of disclosure of a communication or
10 information covered by the attorney-client privilege or work product protection, the
11 parties may incorporate their agreement in the stipulated protective order submitted to
12 the court.
13 12.

MISCELLANEOUS

14

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

15 person to seek its modification by the court in the future.
16

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

17 Protective Order no Party waives any right it otherwise would have to object to
18 disclosing or producing any information or item on any ground not addressed in this
19 Stipulated Protective Order. Similarly, no Party waives any right to object on any
20 ground to use in evidence of any of the material covered by this Protective Order.
21

12.3 Filing Protected Material. Without written permission from the

22 Designating Party or a court order secured after appropriate notice to all interested
23 persons, a Party may not file in the public record in this action any Protected Material.
24 A Party that seeks to file under seal any Protected Material must comply with Local
25 Rule 141. Protected Material may only be filed under seal pursuant to a court order
26 authorizing the sealing of the specific Protected Material at issue. Pursuant to Local
27 Rule 141, a sealing order will issue only upon a showing required by applicable law.
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STIPULATED PROTECTIVE ORDER

1 13.

FINAL DISPOSITION

2

Within 60 days after the final disposition of this action, as defined in paragraph

3 4, each Receiving Party must return all Protected Material to the Producing Party or
4 destroy such material. As used in this subdivision, “all Protected Material” includes
5 all copies, abstracts, compilations, summaries, and any other format reproducing or
6 capturing any of the Protected Material. Whether the Protected Material is returned or
7 destroyed, the Receiving Party must submit a written certification to the Producing
8 Party (and, if not the same person or entity, to the Designating Party) by the 60 day
9 deadline that (1) identifies (by category, where appropriate) all the Protected Material
10 that was returned or destroyed and (2) affirms that the Receiving Party has not
11 retained any copies, abstracts, compilations, summaries or any other format
12 reproducing or capturing any of the Protected Material. Notwithstanding this
13 provision, Counsel are entitled to retain an archival copy of all pleadings, motion
14 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
15 deposition and trial exhibits, expert reports, attorney work product, and consultant
16 and expert work product, even if such materials contain Protected Material. Any such
17 archival copies that contain or constitute Protected Material remain subject to this
18 Protective Order as set forth in Section 4 (DURATION).
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STIPULATED PROTECTIVE ORDER

1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3 Dated: December 11, 2015

SHOOK HARDY & BACON L.L.P.

4
By:

5
6

/s/ Naoki S. Kaneko
Naoki S. Kaneko
Attorneys for Defendant
Tyson Foods, Inc.

7
8 Dated: December 11, 2015

DAVIS & NORRIS, LLP

9
By: /s/ John E. Norris ________
(as authorized on November 24, 2015)
John E. Norris
Attorneys for Plaintiff

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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Dated: December 11, 2015

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, ______________________________ [print full name], of

4 ________________________________ [print full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order
6 that was issued by the United States District Court for the Eastern District of
7 California Sacramento Division in the case of Susan Fitzpatrick v. Tyson Foods, Inc.,
8 Case No. 2:15-cv-02285-TLN-KJN. I agree to comply with and to be bound by all the
9 terms of this Stipulated Protective Order and I understand and acknowledge that
10 failure to so comply could expose me to sanctions and punishment in the nature of
11 contempt. I solemnly promise that I will not disclose in any manner any information
12 or item that is subject to this Stipulated Protective Order to any person or entity except
13 in strict compliance with the provisions of this Order.
14

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

15 for the Eastern District of California for the purpose of enforcing the terms of this
16 Stipulated Protective Order, even if such enforcement proceedings occur after
17 termination of this action.
18
19

I hereby appoint ________________________ [print full name] of
_________________________________ [print full address and telephone number] as

20 my California agent for service of process in connection with this action or any
21 proceedings related to enforcement of this Stipulated Protective Order.
22
23 Date: ____________________
24 City and State where sworn and signed: __________________________________
25
26 Printed name: ____________________________________
27 Signature: _______________________________________
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STIPULATED PROTECTIVE ORDER