U.S. Equal Employment Opportunity Commission v. PC Iron, Inc. et al

Filing 40

Protective Order Re: EDD Subpoena [Doc. No. 38 ]. Signed by Magistrate Judge William V. Gallo on 1/17/2018. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Case No.: 16-CV-2372-CAB(WVG)
PROTECTIVE ORDER RE: EDD

Plaintiff,

SUBPOENA

v.

[Doc. No. 38.]

PC IRON, INC. d/b/a PACIFIC COAST
IRON, INC.,
Defendant.

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The Court recognizes that at least some of the documents and information Plaintiff

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U.S. Equal Employment Opportunity Commission (“EEOC”) obtained through discovery

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in the above-captioned action are protected by a right to privacy and normally kept

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confidential. Accordingly, the parties hereby stipulate to, have agreed to be bound by, and

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petition the Court to enforce the terms of this Protective Order in this action.

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Documents obtained by the EEOC during the course of this litigation may contain

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information protected by a right to privacy under California law, trade secret, financial, or

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other commercial information, as is contemplated by Federal Rule of Civil Procedure

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26(c)(1)(G). The purpose of this Order is to protect the confidentiality of such materials as

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much as practical during the litigation. THEREFORE:

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DEFINITIONS

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1.

The term "Confidential Information" will mean and include information

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contained or disclosed in any materials, including documents, portions of documents,

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answers to interrogatories, responses to requests for admissions, trial testimony, deposition

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testimony, and transcripts of trial testimony and depositions, including data, summaries,

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and compilations derived therefrom that is deemed to be Confidential Information by any

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party to which it belongs.

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2.

The term "materials" will include, but is not be limited to: documents;

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correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other

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material that identify customers or potential customers; price lists or schedules or other

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matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks;

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contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk

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diaries; appointment books; expense accounts; recordings; photographs; motion pictures;

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compilations from which information can be obtained and translated into reasonably usable

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form through detection devices; sketches; drawings; notes (including laboratory notebooks

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and records); reports; instructions; disclosures; other writings; models and prototypes and

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other physical objects.

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3.

The term "counsel" will mean outside counsel of record, and other attorneys,

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paralegals, secretaries, and other support staff employed in the law firms identified below:

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U.S. Equal Employment Opportunity Commission (“EEOC”) for Plaintiff EEOC,

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Bokhour Law Group, P.C. for Plaintiff-Intervenor Elsa Perez, and Simpson, Delmore, &

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Greene, P.C. for Defendant Pacific Coast Iron, Inc.

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GENERAL RULES
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The parties hereby stipulate and agree that all documents produced by the

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California Employment Development Department on or about October 4, 2017 (EDD

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Documents, bates stamped EDD 0001-0141) in response to a subpoena issued by the EEOC

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in this action are subject to this Protective Order and are hereby designated as
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“CONFIDENTIAL.”
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EDD Documents, bates stamped EDD 0001-0141, that have been designated as

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"CONFIDENTIAL" must not be disclosed or produced by any party to anyone other than

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those persons designated within this Order and must be handled in the manner set forth

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below and, in any event, must not be used for any purpose other than in connection with

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this litigation, unless and until such designation is removed either by agreement of the

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parties, or by order of the Court.

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6.

EDD Documents, bates stamped EDD 0001-0141, designated as

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"CONFIDENTIAL” must be viewed only by counsel (as defined in paragraph 3) of the

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receiving party, and by individuals identified in paragraph 7. Prior to reviewing or gaining

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access to this Confidential Information, each Party must ensure that any non-party

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witness(s) and any expert witness(s) execute an agreement to be bound by the terms of this

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Order, (See Exhibit A attached hereto, Acknowledgement and Agreement to be Bound

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(“Acknowledgement”)). Witnesses are prohibited from disclosing Confidential

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Information outside this action. The Parties shall maintain the signed acknowledgments

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that each acquires. Disclosure of the Confidential Information to any other person or entity

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who has not signed an Acknowledgement is not permitted except as stated below.

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7.

Information designated "CONFIDENTIAL" must be viewed only by counsel

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(as defined in paragraph 3) of the receiving party, by independent experts, and by the

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additional individuals listed below, provided each such individual has read this Order in

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advance of disclosure and has agreed in writing to be bound by its terms:

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a)

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Executives who are required to participate in policy decisions with
reference to this action;

b)

Technical personnel of the parties with whom Counsel for the parties

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find it necessary to consult, in the discretion of such counsel, in

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preparation for trial of this action;

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c)

Each witness only with respect to Confidential Information pertaining
to himself or herself; and
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d)

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Stenographic and clerical employees associated with the individuals
identified above.

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With respect to material designated "CONFIDENTIAL," any person

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indicated on the face of the document to be its originator, author or a recipient of a copy

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of the document, may be shown the same.

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9.

All information which has been designated as "CONFIDENTIAL" by the

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producing or disclosing party, and any and all reproductions of that information, must be

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retained in the custody of the counsel for the receiving party identified in Paragraph 3,

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except that independent experts authorized to view such information under the terms of

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this Order may retain custody of copies such as are necessary for their participation in this

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litigation.

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10.

All Confidential Information must be held in confidence by those inspecting

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or receiving it, and must be used only for purposes of this action. Counsel for each party,

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and each person receiving Confidential Information must take reasonable precautions to

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prevent the unauthorized or inadvertent disclosure of such information. If Confidential

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Information is disclosed to any person other than a person authorized by this Order, the

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party responsible for the unauthorized disclosure must immediately bring all pertinent facts

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relating to the unauthorized disclosure to the attention of the other parties and, without

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prejudice to any rights and remedies of the other parties, make every effort to prevent

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further disclosure by the party and by the person(s) receiving the unauthorized disclosure.

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11.

No party will be responsible to another party for disclosure of Confidential

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Information under this Order if the information in question is not labeled or otherwise

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identified as such in accordance with this Order.

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12.

If a party, through inadvertence, produces any Confidential Information

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without labeling or marking or otherwise designating it as such in accordance with this

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Order, the designating party may give written notice to the receiving party that the

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document or thing produced is deemed Confidential Information, and that the document or

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thing produced should be treated as such in accordance with that designation under this
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Order. The receiving party must treat the materials as confidential, once the designating

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party so notifies the receiving party. If the receiving party has disclosed the materials before

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receiving the designation, the receiving party must notify the designating party in writing

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of each such disclosure. Counsel for the parties will agree on a mutually acceptable manner

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of labeling or marking the inadvertently produced materials as “CONFIDENTIAL.”

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13.

Nothing within this order will prejudice the right of any party to object to the

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production of any discovery material on the grounds that the material is protected as

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privileged or as attorney work product.

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14.

Nothing in this Order will bar counsel from rendering advice to their clients

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with respect to this litigation and, in the course thereof, relying upon any information

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designated as Confidential Information, provided that the contents of the information must

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not be disclosed.

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15.

This Order will be without prejudice to the right of any party to oppose

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production of any information for lack of relevance or any other ground other than the mere

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presence of Confidential Information. The existence of this Order must not be used by

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either party as a basis for discovery that is otherwise improper under the Federal Rules of

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Civil Procedure.

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16.

Before any Confidential Information is filed with the Court, the party seeking

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to file Confidential Information must seek permission of the Court to file the material under

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seal, except upon consent of the parties or upon further order of the Court. As an alternative

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to seeking to file the records under seal, a party seeking to file the Confidential Information

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for dispositive motions may seek an order from the Court finding that the need for public

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access to dispositive pleadings outweighs the interests in keeping the information and/or

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records confidential. An application to file a document under seal or for an order finding

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the need for public access outweighs the interest in keeping the information and/or records

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confidential shall be served on opposing counsel, and on the person or entity that has

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custody and control of the document, if different from opposing counsel. If opposing

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counsel, or the person or entity who has custody and control of the document, wishes to
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oppose the application, he/she must contact the chambers of the judge who will rule on the

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application, to notify the judge’s staff that an opposition to the application will be filed.

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Notwithstanding the above, the parties agree to comply with the Local Rules regarding

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procedures for filing papers and documents under seal for any materials that have been

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designated as CONFIDENTIAL under paragraph 4.

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No document shall be filed under seal unless counsel secures a court order

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allowing the filing of a document under seal. An application to file a document under seal

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shall be served on opposing counsel, and on the person or entity that has custody and

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control of the document, if different from opposing counsel. If opposing counsel, or the

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person or entity who has custody and control of the document, wishes to oppose the

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application, he/she must contact the chambers of the judge who will rule on the application,

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to notify the judge’s staff that an opposition to the application will be filed.

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18.

In the event this matter proceeds to trial, the parties agree that the issue of

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whether the parties can use Confidential Information for trial purposes should be resolved

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by the presiding district judge.

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19.

Nothing in this Order prevents the disclosure of Confidential Information

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if such disclosure is required by law or by order of the Court. However, if any party subject

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to this Protective Order must make a disclosure (including, but not limited to, responding

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to a subpoena or an order issued in other litigation) of any information or items designated

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in this action as "CONFIDENTIAL,” the receiving party must promptly notify the party

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opposing disclosure, and in no event more than ten (10) business days after receiving the

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subpoena or order. Such notification must include a copy of the subpoena or court order.

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The receiving party must also promptly inform in writing the party who caused the

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

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the subpoena or order is the subject of this Protective Order and must deliver a copy of this

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Protective Order to the party seeking the information. The purpose of imposing these duties

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is to alert the interested parties to the existence of this Protective Order and to afford the

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designating party in this case an opportunity to try to protect its confidentiality interests in
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the court from which the subpoena or order issued. The party opposing disclosure shall

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bear the burdens and the expenses of seeking protection in that court of its confidential

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material, and nothing in these provisions should be construed as authorizing or encouraging

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a receiving party in this action to disobey a lawful directive from another court.

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20.

Upon final termination of this action, including any and all appeals, counsel

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for each party shall destroy and not release to the public any Confidential Information

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produced in discovery which are covered by this Stipulated Protective Order. With respect

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to the EEOC, any Confidential Information contained in the EEOC’s litigation files shall

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be maintained in accordance with National Archives and Records Administration (NARA)

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regulations and EEOC Records Management, regulations, orders, and procedures.

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Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs,

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memoranda, motions, and other documents filed with the Court that refer to or incorporate

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Confidential Information, and will continue to be bound by this Order with respect to all

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such retained information. Further, attorney work product materials that contain

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Confidential Information need not be destroyed, but, if they are not destroyed, the person

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in possession of the attorney work product will continue to be bound by this Order with

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respect to all such retained information.

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21.

The restrictions and obligations set forth within this order will not apply to

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any information that: (a) the parties agree should not be designated Confidential

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Information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the

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parties agree, or the Court rules, has become public knowledge other than as a result of

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disclosure by the receiving party, its employees, or its agents in violation of this Order; or

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(d) has come or will come into the receiving party's legitimate knowledge independently

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of the production by the designating party. Prior knowledge must be established by pre-

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production documentation.

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The restrictions and obligations within this Order will not be deemed to

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prohibit discussions of any Confidential Information with anyone if that person already has

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or obtains legitimate possession of that information.
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23.

This Order may be modified by written agreement of the parties, subject to

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approval by the Court, and nothing in this Order abridges or limits the right of any person

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to seek its modification by the Court in the future.

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24.

The Court may modify the terms and conditions of this Order for good cause,

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or in the interest of justice, or on its own order at any time in these proceedings. The parties

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prefer that the Court provide them with notice of the Court's intent to modify the Order and

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the content of those modifications, prior to entry of such an order.

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IT IS SO ORDERED.

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DATED: January 17, 2018

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