Hall v. Marriott International, Inc.

Filing 44

ORDER Granting #41 Joint Motion for Protective Order. Signed by Magistrate Judge Allison H. Goddard on 11/19/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TODD HALL, individually and on behalf
of all others similarly situated,
v.

ORDER GRANTING JOINT
MOTION FOR PROTECTIVE
ORDER

MARRIOTT INTERNATIONAL, INC.,

[ECF No. 41]

Plaintiff,

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Case No.: 3:19-cv-01715-JLS-AHG

Defendant.

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Before the Court is the parties’ Joint Motion for Protective Order. ECF No. 41.

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Having reviewed the motion and the parties’ proposed protective order, good cause

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appearing, the Court GRANTS the motion. The Court enters the following Stipulated

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Protective Order exactly as submitted by the parties:

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1.

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Discovery in this action is likely to involve production of confidential, proprietary,

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or private information for which special protection from public disclosure and from use for

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any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter this Stipulated Protective Order

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(“Order”). 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.

PURPOSES AND LIMITATIONS

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“GOOD CAUSE” STATEMENT

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This action is likely to involve trade secrets and/or proprietary information for which

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special protection from public disclosure and from use for any purpose other than

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prosecution of this action is warranted. Such confidential and proprietary materials and

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information consist of, among other things, confidential business or financial information,

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information regarding confidential business practices, or other confidential research,

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development, or commercial information (including information implicating privacy rights

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of third parties), information otherwise generally unavailable to the public, or which may

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be privileged or otherwise protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law. Accordingly, to expedite the flow of information,

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

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to adequately protect information the parties are entitled to keep confidential, to ensure that

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the parties are permitted reasonably necessary uses of such material in preparation for and

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in the conduct of trial, to address their handling at the end of the litigation, and to serve the

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ends of justice, a protective order for such information is justified in this matter. It is the

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intent of the parties that information will not be designated as confidential for tactical

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reasons and that nothing be so designated without a good-faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it should not

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be part of the public record of this case.
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2.

DEFINITIONS

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2.1

Action: Hall v. Marriott International, Inc., No. 3:19-cv-01715-JLS-AHG.

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2.2

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

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

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is generated, stored or maintained) or items that qualify for protection under Federal Rule

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of Civil Procedure 26(c), and as specified above in the “Good Cause” Statement.

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2.4

Counsel: Outside Counsel of Record and/or House Counsel (as well as their

respective support staff).
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Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of the

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

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things, testimony, transcripts, and items), that are produced or generated in disclosures or

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responses to discovery in this Action.

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2.7

Expert: a person who has been retained by a Party or its counsel to serve as an

expert witness or as a consultant in this Action.
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House Counsel: attorneys who are employees of a party to this Action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.

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2.10 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 appeared

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

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on behalf of that party, and includes support staff.

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2.11 Parties: all the parties to this Action.

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2.12 Party: any party to this Action.

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2.13 Professional Vendors: persons or entities that provide litigation support
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services

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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.

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(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from
a Producing Party.

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3.

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The protections conferred by this Order cover not only Protected Material, but also

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(1) any information copied or extracted from Protected Material; (2) all copies, excerpts,

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summaries, or compilations of Protected Material; and (3) any testimony, conversations,

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or presentations by Parties or their Counsel that constitute Protected Material.

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SCOPE

Any use of Protected Material at trial shall be governed by a separate agreement or
order. This Order does not govern the use of Protected Material at trial.

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4.

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Even after final disposition of this Action, the confidentiality obligations imposed

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

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or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

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dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final

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judgment herein after the completion and exhaustion of all appeals, rehearings, remands,

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trials, or reviews of this action, including the time limits for filing any motions or

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applications for extension of time pursuant to applicable law.

DURATION

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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Designating Party must take care to limit any designations to specific material that qualifies

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

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

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so that other portions of the material, documents, items, or communications for which
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protection is not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber or retard the case development process or to impose

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unnecessary expenses and burdens on other parties) potentially expose the Designating

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Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify 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 requires:

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(a)

for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Designating Party affix the legend "CONFIDENTIAL" to each page that contains protected

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material. If only a portion or portions of the material on a page qualifies for protection, the

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Designating Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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

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

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

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

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"CONFIDENTIAL." After the inspecting Party has identified the documents it wants

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copied and produced, the Party or Non-Party whose documents were inspected must

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determine which documents, or portions thereof, if any, qualify for protection under this

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Order. Then, before producing the specified documents, the Designating Party must, if
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applicable, affix the "CONFIDENTIAL" legend to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for protection, the

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Designating Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b)

for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify all protected testimony within thirty (30) days of receipt of

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the deposition, pretrial, or trial transcript. The Parties agree that, until the Designating Party

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identifies which portions, if any, of testimony are “CONFIDENTIAL,” the Parties shall

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treat all of the testimony as “CONFIDENTIAL.”

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(c)

for information produced in some form other than documentary and for any

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other tangible items, that the Designating Party affix in a prominent place on the exterior

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

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"CONFIDENTIAL." If only a portion or portions of the information or item warrant

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protection, the Designating Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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

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Party's right to secure protection under this Order for such material. Upon timely correction

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of a designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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To that end, an inadvertent failure to designate privileged or otherwise protected

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information or items does not, standing alone, waive the relevant privilege or other

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protection. Upon correction, the Receiving Party must make reasonable efforts to assure

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that all privileged material and work product is returned or destroyed immediately. Upon

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correction, the Receiving Party must make reasonable efforts to assure the all material

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otherwise protected is treated accordingly.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation
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of confidentiality at any time. Unless a prompt challenge to a Designating Party's

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party

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or Non-Party does not waive its right to challenge a confidentiality designation by electing

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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

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process by providing written notice of each designation it is challenging and describing the

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specific basis for each challenge, i.e., the specific reason(s) why the Challenging Party

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contends that certain Protected Material allegedly is not protected under this Order. To

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avoid ambiguity as to whether a challenge has been made, the written notice must recite

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that the challenge to confidentiality is being made in accordance with this specific

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paragraph of the Order. The Challenging Party and Designating Party shall attempt to

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resolve each challenge in good faith and must begin the process by conferring directly (in

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voice-to-voice dialogue; other forms of communication are not sufficient) within 10 days

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of the date of service of notice. In conferring, the Challenging Party must explain the basis

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for its belief that the confidentiality designation for each challenged item of Protected

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Material was not proper and must give the Designating Party an opportunity to review the

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

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

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to the 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 meet-

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and-confer process in a timely manner.

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6.3

Judicial Intervention. If the Challenging Party and Designating Party cannot

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resolve a challenge without court intervention, the Challenging Party may seek court

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intervention. 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., to

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

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

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confidentiality designation, the Parties shall continue to afford the Protected Material in

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question the level of protection to which it is entitled under the Designating Party’s

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designation until the court rules on the challenge. Each such motion 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 in the preceding paragraph.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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disclosed or produced by another Party or Non-Party in connection with this Action only

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for prosecuting, defending, or attempting to settle this Action. Such Protected Material

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may be disclosed only to the categories of persons and under the conditions described in

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this Order. When the Action has been terminated, a Receiving Party must comply with the

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provisions of section 13 below (FINAL DISPOSITION).

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

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

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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 Party

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may disclose Protected Material only to:

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(a)

a Party;

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(b)

the Receiving Party's Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(c)

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

Receiving Party to whom disclosure is reasonably necessary for this Action;
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Experts (as defined in this Order) of the Receiving Party to whom disclosure

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is reasonably necessary for this litigation and who have signed the "Acknowledgment and

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Agreement to Be Bound" (Exhibit A);
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(e)

the court and its personnel;

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(f)

court reporters and their staff,

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(g)

professional jury or trial consultants, mock jurors, and Professional Vendors

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to whom disclosure is reasonably necessary for this Action and who have signed the

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"Acknowledgment and Agreement to Be Bound" form attached hereto as Exhibit A;

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(h)

the author or recipient of a document constituting or containing the Protected

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Material or a custodian or other person who otherwise possessed or knew the information

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constituting Protected Material;

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(i)

deponents and their attorneys to whom disclosure during a deposition in this

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Action is reasonably necessary, provided that: (1) the deponent and its attorney each first

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sign the "Acknowledgment and Agreement to Be Bound" form attached hereto as Exhibit

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A; and (2) the deponent and its attorney is not permitted to keep any Protected Material,

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material

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may be separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Stipulated Protective Order;

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(j)

any mediator or settlement officer, and their supporting personnel, mutually

agreed upon by the Parties; and

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(k)

any other person as to whom the parties in writing agree.

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8.

PROTECTED

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MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any Protected Material, that Party must:
(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
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promptly notify in writing the party who caused the subpoena or order to issue

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

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subject to this Order. Such notification shall include a copy of this Order; and
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(c)

cooperate with respect to all reasonable procedures sought to be pursued by

the Designating Party whose Protected Material may be affected.

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

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subpoena or court order shall not produce any Protected Material before a determination

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by the court from which the subpoena or order issued, unless the Party has obtained the

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Designating Party's permission. The Designating Party shall bear the burden and expense

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of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this

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action to disobey a lawful directive from another court.

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9.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a)

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

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in this action and designated as "CONFIDENTIAL." Such information produced by Non-

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Parties in connection with this Action is protected by the remedies and relief provided by

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this Order. Nothing in these provisions should be construed as prohibiting a Non-Party

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from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party's confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party to not produce the Non-Party's confidential information,

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then the Party shall:

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promptly notify in writing the requesting party and the Non-Party that

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

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Non-Party;

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2.

promptly provide the Non-Party with a copy of this Order, the relevant

discovery request(s), and a reasonably specific description of the information requested;
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meet and confer with the requesting party to consider whether the Party

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can produce the Disclosure or Discovery Material containing a Non-Party’s confidential

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information without disclosing the confidential information; and
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4.

make the information requested available for inspection by the Non-

Party.
(c)

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

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21 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party's confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement with

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the Non-Party before a determination by the court. Absent a court order to the contrary, the

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Non-Party shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

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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 Order,

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the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures

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were made of all the terms of this Order, and (d) request such person or persons to execute

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the "Acknowledgment and Agreement to Be Bound" form attached hereto as Exhibit A.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL

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When a producing party gives notice to receiving parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of

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the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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

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privilege or work-product protection, the parties may incorporate their agreement in this
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Order.

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12.

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

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MISCELLANEOUS

to seek its modification by the court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this Order, no

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Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered by this

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Order.

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12.3 Filing Protected Material. No document shall be filed under seal unless

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counsel secures a court order allowing the filing of a document or portion thereof under

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seal pursuant to Local Rule 79.2. An application to file a document under seal shall be

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served on opposing counsel, and on the person or entity that has custody and control of the

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document, if different from opposing counsel. If opposing counsel, or the person or entity

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who has custody and control of the document, wishes to oppose the application, they must

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contact the chambers of the judge who will rule on the application to notify the court that

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an opposition to the application will be filed. Nothing in this paragraph 12.3 is intended to

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impose requirements which are in addition to or more onerous than those imposed by the

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Federal Rules of Civil Procedure and the Local Rules.

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12.4 The Court may modify this Order sua sponte in the interests of justice or for
public-policy reasons.

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13.

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This Order shall survive the final termination of this Action, to the extent that the

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information contained in the Protected Material is not or does not become known to the

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public, and the Court shall retain jurisdiction to resolve any dispute concerning the use of

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Protected Material disclosed hereunder. Upon termination of this Action, the Parties’

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counsel shall assemble and return to each other all documents, material and deposition

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transcripts designated as confidential and all copies of same, or shall certify the destruction

FINAL DISPOSITION

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thereof.

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14.

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Any violation of this Order may be punished by any and all appropriate measures

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VIOLATIONS

including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO ORDERED.
Dated: November 19, 2020

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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

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_________________ [print or type full address], declare under penalty of perjury that I

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have read in its entirety and understand the Stipulated Protective Order that was issued by

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the United States District Court for the Southern District of California on [________] in

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the case of Hall v. Marriott International, Inc., Case No. 3:19-cv-01715-JLS-AHG. I agree

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

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understand and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in any

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manner any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions 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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Southern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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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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[printed name]

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Signature: __________________________________

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[signature]

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