Lopez et al v. Ham Farms, LLC et al

Filing 118

SUPPLEMENTAL CONSENT PROTECTIVE ORDER regarding Class Notice and Selection of Third Party Administrator - Signed by US Magistrate Judge Robert T. Numbers, II on 4/21/2020. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
ADAN LOPEZ, FRANCISCO MENDEZ, EZEQUIEL
ABURTO-HERNANDEZ, ELENA RAFAEL-PERALTA,
JOSÉ PABLO SANDOVAL-MONTALVO, JOSÉ
JIMENEZ-OLIVAREZ, ALEJANDRO MARTINEZ-MENDEZ
FRANCISCO PALACIOS-HERNANDEZ, HUMBERTO DE
LA LUZ ARMENTA, and ISAIAS ESPINOSA-VAZQUEZ,
on behalf of themselves and other similarly situated persons,

)
)
)
)
)
)
)
)
Plaintiff,
) COLLECTIVE ACTION § 216(b)
)
v.
)
CLASS ACTION
)
HAM FARMS, LLC f/k/a HAM FARMS, INC., HAM
)
Civil Action No.:
PRODUCE, LLC f/k/a HAM PRODUCE COMPANY, INC.,
)
5:17-CV-00329-D
ISMAEL PACHECO, PACHECO CONTRACTORS, INC.,
)
HUGO MARTINEZ, GUTIERREZ HARVESTING, LLC,
)
ROBERTO TORRES-LOPEZ, 5 G HARVESTING, LLC,
)
RODRIGO GUTIERREZ-TAPIA, SR., CIRILA GARCIA)
PINEDA, BLADIMIR MORENO, and LOS VILLATOROS
)
HARVESTING, LLC,
)
)
Defendants.
)
____________________________________________________ )

[PROPOSED] SUPPLEMENTAL CONSENT PROTECTIVE ORDER REGARDING
CLASS NOTICE AND SELECTION OF THIRD PARTY ADMINISTRATOR
The parties to this Supplemental Consent Protective Order – Plaintiffs; Ham
Farms, LLC and Ham Produce LLC; and Gutierrez Harvesting, LLC, 5 G Harvesting,
LLC, and Rodrigo Gutierrez-Tapia, Sr. – have settled all claims in this case through
Mediated Settlement Agreements but continue to negotiate the terms and conditions of
Class Notice and selection of a Third Party Claims Administrator (hereinafter “TPCA”).
To further facilitate those negotiations, the Parties have agreed to the entry of this

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Supplemental Consent Protective Order (hereinafter “Supplemental Order”) regarding
Class Notice and selection of a TPCA. The Parties stipulate as follows:
1.

The Parties participated in mediation on December 18, 2019.

2.

Plaintiffs and Ham Farms Defendants entered into a Mediated Settlement

Agreement on December 19, 2019. Plaintiffs and the Gutierrez Defendants entered into
a Mediated Settlement Agreement on March 27, 2019. The Parties agree these Mediated
Settlement Agreements are legally binding and resolved all substantive issues in the
litigation between Plaintiffs and Defendants. The Parties have not, however, reached an
agreement on the proposed method, form, and process of Class Notice and the selection
of the TPCA, pursuant to Federal Rules of Civil Procedure 23(c)(2)(B), 23(d)(1)(B)(i),
23(d)(1)(E), and Rule 23(e)(1)(B).
3.

On March 12, 2020, the Plaintiffs filed a Motion for Status Conference [DE

105] related to the outstanding issue of Class Notice and the TPCA. On April 2, 2020,
the Parties participated in a telephonic conference with the Honorable Robert Numbers.
With the guidance of Magistrate Judge Numbers, the Parties agreed to negotiate and submit

to the Court for its consideration a proposed order to protect the documents and
information that the defendants will provide to the plaintiffs to allow the parties to both
negotiate and, if necessary, present to the Court their respective positions as to the
appropriate methods by which notice to the class can and should be provided that
information. The Parties acknowledge that an additional exchange of information
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related to available documents may facilitate negotiations relating to the method of
Class Notice.
4.

The Parties acknowledge the Consent Protective Order Regarding Early

Mediation (hereinafter “Consent Protective Order”), entered on May 1, 2018 [DE 73],
and the Parties agree they continue to be bound by the provisions set forth in the
Consent Protective Order, except as otherwise stated herein.
5.

The Parties have agreed to the entry of this Supplemental Order to further

protect against disclosure of documents to be exchanged or any use of the information
except for the express purposes as set forth herein.
6.

The express purpose for the exchange and return of the identified

documents is to determine the appropriate method(s) of Class Notice and to identify a
proposed TPCA(s) for submission to the Court.
Therefore, it appears to the Court there is good cause to enter this Supplemental
Order to protect certain documents, and accordingly:
IT IS HEREBY ORDERED that the Parties shall continue to be governed by the
terms and conditions of the Consent Protective Order, except as otherwise
supplemented herein,
A.

Scope of Supplemental Order

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1.

This Supplemental Order and any amendments or modification hereto

shall govern the confidentiality of the production of documents pursuant to this Order,
subject to modifications by future Orders.
a.

For the same time period specified in ¶A.1. above, this Supplemental

Order shall also apply to any copies, excerpts, abstracts, charts, analyses, summaries,
descriptions, notes, or other forms of recorded information containing, reflecting, or
disclosing any such information contained in the identified documents.
b.

The documents are being produced prior to and potentially over the

course of negotiating the proper method(s) of Class Notice and selection of a proposed
TPCA(s).
c.

Unless otherwise agreed in writing by the producing party

or producing parties, counsel shall return and not retain all documents and copies
produced pursuant to this Supplemental Order to the Producing Party within 15 days
of the filing of a joint motion for preliminary approval of the settlement with the Court.
2.

For the Gutierrez Defendants: In order to obtain key information for the

sole purpose of resolving the best notice that is practicable under the circumstances, the
method(s) and procedure for Class Notice, and to identify an appropriate TPCA for
submission to the Court, and subject to the terms of this Supplemental Order, the
Gutierrez Defendants shall within 15 days of the entry of this Supplemental Order
electronically deliver to all Plaintiffs’ Counsel of Record via either email, Box, or access
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to a virtual reading room information (to the extent it exists) in the possession, custody
or control of one or more of the Gutierrez Defendants that shows identifying and
contact information, including but not limited to full names, United States and/or
Mexico addresses, cellphone numbers, landline phone numbers, email addresses and/or
Whats App numbers of any worker who performed services on behalf of the Gutierrez
Defendants on any property owned or leased by the Ham Farms Defendants from April
30 2015 through December 2017.
3.

For the Ham Farm Defendants: In order to obtain key information for the

sole purpose of resolving the best notice that is practicable under the circumstances
practical method(s) and procedure for Class Notice and to identify an appropriate
TPCA for submission to the Court, and subject to the terms of this Supplemental Order,
the Ham Farm Defendants shall within 15 days of the entry of this Supplemental Order
deliver to all Plaintiffs’ Counsel of Record via email, information in their possession,
custody or control that shows identifying and contact information, including but not
limited to full names, United States and/or Mexico addresses, cellphone numbers,
landline telephone numbers, email addresses and/or Whats App numbers of any
worker who performed services on behalf of any of the following labor contractors on
any property owned or leased by the Ham Farms Defendants from June 30, 2014
through December 2017, organized by labor contractor:
(1) Ismael Pacheco
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(2) Pacheco Contractors, Inc.
(3) Hugo Martinez
(4) Lucia Covarrubias
(5) Marisa Garcia Pineda
(6) Cirila Garcia Pineda
(7) Bladimir Moreno
(8) Los Villatoros Harvesting, LLC
(9) Robert Torres-Lopez
(10)
B.

Jose Rivera Harvesting, Inc.

Definitions
The Parties stipulate that the Definitions outlined in the Consent Protective

Order apply to the Parties’ continued negotiations regarding Class Notice and the
TPCA, including the definition of “Confidential” or “Attorney Eyes Only” information.
In addition to those definitions, the Parties add the following definitions:
1.

“Gutierrez Defendants” shall mean Defendant Rodrigo Gutierrez-Tapia,

Sr., Defendant Gutierrez Harvesting, LLC, and/or Defendant 5 G Harvesting, LLC who
acting jointly, severally, or in any possible combination, have the practical ability to
request or obtain documents or information from, including but not limited to José
Javier Gutierrez-Tapia d/b/a Florida Orange Gold, LLC, 4512 Mason Dixon Ave.,
Bowling Green, FL 33834, or any individual or entity who assists or assisted the
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Gutierrez Defendants or José Javier Gutierrez-Tapia d/b/a Florida Orange Gold, LLC in
the recruitment or furnishing of H-2A workers.
2.

“Ham Farm Defendants” shall mean Defendant Ham Farms, LLC f/k/a

Ham Farms, Inc., and Defendant Ham Produce, LLC f/k/a Ham Produce Company, Inc.,
acting jointly, severally, or in any combination.
C.

Confidentiality
1.

Documents produced pursuant to this Supplemental Order, specifically

including those designated as “CONFIDENTIAL” or “ATTORNEY EYES ONLY,” shall
be used solely for the purpose of assisting the Parties and the Court to determine the
best notice that is practicable under the circumstances and to identify for submission to
the Court a suitable TPCA and for no other use or purpose whatsoever, including
without limitation any other known, unknown, potential or anticipated litigation, labor
organization efforts, or any business or competitive purpose or function. The
documents produced pursuant to this Supplemental Order shall not be distributed,
disclosed, or made available outside of Counsel of Record, a TPCA that has been
approved by all Parties or the Court (such as Kilpatrick or other mutually agreeable
TPCAs), and the ten (10) persons named as individual plaintiffs in this action (a) who
shall review the information only in their Counsel’s office or a virtual reading room, but
may not retain the information and (b) who shall sign a written acknowledgement
confirming that each is bound by this Order and who shall only have access to
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information produced by or related to any person or entity or real party in interest who
performed any farm labor contracting activity on Ham Farms property with respect to
that individual plaintiff, including furnishing, supervising, and/or working with that
individual plaintiff, as authorized in this Supplemental Order. Nothing in this Order
prohibits any Party from providing summary information (consisting of data related to
the number, general location, and type of contact information available for class
members) to a prospective TPCA before they have been selected or approved for the
purpose of preparing a budget or proposal by such TCPA.
2.

Documents produced pursuant to this Supplemental Order must be

stored or maintained at a location and in a secure manner that ensures access is limited
to Counsel who have filed notices of appearance in this action, TPCA(s) (such as
Kilpatrick or other mutually agreeable TPCAs who shall sign a written
acknowledgement confirming that it is bound by this Order ), and the ten (10) persons
named as individual plaintiffs in this action (who shall sign a written acknowledgement
confirming that each is bound by this Order and who shall only have access to
information produced by or related to the any person or entity or real party in interest
who performed any farm labor contracting activity on Ham Farms property with
respect to that individual plaintiff, including furnishing, supervising, and/or working
with that individual plaintiff).

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3.

At the conclusion of this lawsuit, all documents and all copies produced

pursuant to this Supplemental Order shall not be retained and shall be promptly
returned to the Producing Party without copying or in any way retaining the identity,
contact information, including address or telephone numbers of any potential Class
Member.
4.

No Party (as opposed to the Court-approved TCPA) shall use the

information subject to this Supplemental Protective Order to contact or attempt to
contact any purported or potential class member, unless authorized by the Court in a
subsequent Order.
D.

Procedure for Designating Materials
1. A Producing Party may designate documents produced pursuant to this

Supplemental Order as “CONFIDENTIAL” or “ATTORNEY EYES ONLY” that the
Producing Party reasonably and in good faith believes meets the definitions set forth in
paragraph B of the Consent Protective Order. The designation of information as
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” for purposes of this Supplemental
Order shall be made in the following manner and shall further be consistent with any
applicable Local Rules of the United States District Court for the Eastern District of
North Carolina. Notwithstanding this provision, the parties agree that this provision
shall not be construed to deny the ten (10) named plaintiffs (who shall sign a written
acknowledgement confirming that each is bound by this Order and who shall only have
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access to information produced by or related to any person or entity or real party in
interest who performed any farm labor contracting activity on Ham Farms property
with respect to that individual plaintiff, including furnishing, supervising, and/or
working with that individual plaintiff) the same right of access to relevant documents
and information produced pursuant to this Supplemental Order as their Counsel of
Record.
2. By affixing the legend “CONFIDENTIAL” or “ATTORNEY EYES ONLY” to
documents produced pursuant to this Supplemental Order containing any confidential
information at the time such materials are produced, or as soon thereafter as the Party
seeking protection becomes aware of the confidential nature of the information
disclosed and sought to be protected hereunder. Alternatively, in the case of
documents produced in electronic format and for any other tangible items: by affixing
the legend “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” in a prominent place on
the exterior of the container or containers, or electronic media (including but not limited
to CD or DVD), in which the information is stored.
3.

All information that is designated as CONFIDENTIAL or ATTORNEY

EYES ONLY under this Supplemental Order shall be kept confidential and shall not be
given, shown, made available, discussed or otherwise communicated in any manner
(“disclosed”), either directly or indirectly, to any person not authorized to receive the
documents under the terms of this Supplemental Order. CONFIDENTIAL or
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ATTORNEY EYES ONLY information received by any authorized person shall be used
only for purposes of attempting to reach an agreement on Class Notice and selection of
a TPCA in this litigation and for no other purpose.
4.

Any Information designated CONFIDENTIAL OR ATTORNEY EYES

ONLY shall not be disclosed to any person or entity who competes directly or indirectly
with Defendants nor any labor organization, including Farm Labor Organizing
Committee (FLOC), Legal Aid, Student Action with Farmworkers (SAF), North
Carolina Growers Association (NCGA) nor any other non-profit or for profit that
provides any type of assistance to the H2A or migrant or seasonal agricultural worker
(MSAW) community of workers.
All Parties to this Supplemental Order understand that the Law Office of Robert
J. Willis, P.A. and its sole attorney, Robert J. Willis, are presently, have been and will
continue to be General Counsel for the Farm Labor Organizing Committee, AFL-CIO
(“FLOC”), and that the status of the Law Office of Robert J. Willis, P.A, and its sole
attorney Robert J. Willis as General Counsel for FLOC will in no way disqualify the Law
Office of Robert J. Willis, P.A. and its sole attorney Robert J. Willis, from the receipt,
review, and/or use of all information or documents that are produced pursuant to this
Supplemental Order solely in the capacity of Plaintiffs’ co-counsel in this litigation and
in no other capacity, and that he will not use or disclose any information produced
pursuant to this Supplemental Order for the benefit of third-parties, including FLOC,
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Legal Aid, SAF, NC Growers Association or any other non-profit or for profit that
provides any type of assistance to the H2A or MSAW community of workers except as
may be authorized by the Court.
5.

If, through inadvertence, a party produces a CONFIDENTIAL or

ATTORNEY EYES ONLY document without designating it as CONFIDENTIAL or
ATTORNEY EYES ONLY, the Producing Party may, as soon as reasonably practical,
inform the other parties of the intended CONFIDENTIAL or ATTORNEY EYES ONLY
designation, and all parties shall treat such Information as CONFIDENTIAL or
ATTORNEY EYES ONLY Information under this Supplemental Order. To the extent
that any party already has disclosed this Information, that party promptly shall notify
the Producing Party as to the specific recipients of such Information and shall take all
reasonable steps to remove such Information from said recipients unless they otherwise
are entitled to disclosure under this Supplemental Order.
6.

This Supplemental Order shall not prevent any party from applying to the

Court for relief from it, from applying to the Court for further or additional protective
orders, or from agreeing with the other parties to modify or vacate this Supplemental
Order, subject to the approval of the Court. In the event that any such application is
made, the producing party shall have the burden of proof to demonstrate good cause
under the Rules 23(c)-(e) and Rule 26(c) of the Federal Rules of Civil Procedure for the

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designation and continued maintenance of any particular document, discovery, and/or
information as CONFIDENTIAL or ATTORNEY EYES ONLY.
7.

Before filing any information that has been designated CONFIDENTIAL

or ATTORNEY EYES ONLY with the Court, or any pleadings, motions or other papers
that disclose any such information, counsel shall confer with counsel for the party that
produced the information so designated about how it should be filed. If the party that
produced the information so designated desires that the materials be filed under seal,
then the filing party shall file the materials in accordance with Local Civil Rule 79.2,
EDNC, with notice served upon the producing party. The filing of the materials under
seal shall not be binding on the Court. However, within 10 days of service of such
notice, the party desiring that the materials be maintained under seal shall file with the
Court a motion to seal and supporting memoranda of law specifying the interests which
would be served by restricting public access to the information. The party that initially
filed the materials need not file any such motion to seal or otherwise defend another
party’s desire that the materials remain sealed. The Court will grant the motion to seal
only after providing adequate notice to the public and opportunity for interested parties
to object, after carefully weighing the interests advanced by the movant and those
interests favoring public access to judicial documents and records, and upon finding
that the interests advanced by the movant override any common law or constitutional
right of public access which may attach to the information. Documents submitted
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under seal in accordance with this paragraph will remain under seal in accordance with
this paragraph will remain under seal pending the Court’s ruling If the party desiring
that the information be maintained under seal does not timely file a motion to seal, then
the materials will be deemed unsealed, without need for order of the Court.
8.

Any party to this action may file a motion requesting that the Court

sanction or hold in contempt of Court anyone who violates the terms of this
Supplemental Order.
9.

Unless otherwise permitted by the Court, a Receiving Party is not

permitted to photocopy any documents produced pursuant to this Supplemental Order,
E.

Disclosure

1.

Unless otherwise ordered by the Court or permitted in writing by the

Producing Party, CONFIDENTIAL Material may be disclosed only to the following:
a.

Counsel of Record;

b.

To the named Plaintiffs or Defendants, all of whom must also abide

by this order;
c.

Bona fide experts and bona fide consultants (but not those who are

covered by Section D.4) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the
“Agreement To Be Bound By Protective Order” attached as Exhibit A (DE
73 at 16-18);
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d.

the designated mediator who is assigned to hear this matter, and

his or her staff;
e.

services (but not by those covered by Section D.4) retained by

counsel to photocopy or image documents or to prepare charts,
summaries, timelines, illustrations or other demonstrative materials to be
used in litigation and who have signed the “Agreement To Be Bound By
Protective Order” attached as Exhibit B; and
f.

nothing within this paragraph or this Supplemental Order permits

disclosure of Confidential material to any non-party other than those
previously specified, specifically including FLOC or to the NCGA or
FLOC’s or NCGA’s current or former officers, employees or agents.
2.

Unless otherwise ordered by the Court or as permitted in writing by the

Producing Party, ATTORNEY EYES ONLY material produced pursuant to this
Supplemental Order may be disclosed only to the following:
a. Counsel of Record and
b. Any TPCA that has been approved by all Parties or selected by the
Court (such as Kilpatrick or another mutually agreeable TPCA), but
only after such TPCA has signed an “Agreement To Be Bound By
Protective Order” attached as Exhibit A.

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c. A Receiving Party is not permitted to photocopy any documents
produced pursuant to this Supplemental Order.
F.

Effect of Production
1.

This Supplemental Protective Order is entered solely for the purpose of

assisting the Parties and the Court to determine the best notice practicable under the
circumstances and to identify for submission to the Court a suitable TPCA and for no
other purpose whatsoever. By consenting to this Supplemental Order, no Party releases
or waives its rights, claims or defenses, including but not limited to the right to object to
the production of documents during the course of Class Administration, and the right
to assert that production for and/or use of the documents and information produced
pursuant to this Supplemental Order by Plaintiffs’ Counsel of Record acting as Class
Counsel pursuant to Federal Rules of Civil Procedure Rule 23(g), the TPCA, and/or
other persons or entities who have agreed or contracted to assist Class Counsel and/or
the TPCA in class administration are necessary for Class Counsel in this case to fairly
and adequately represent the interests of any class that the Court may certify pursuant
to Federal Rules of Civil Procedure Rules 23(e)(1)(B)(ii) and Rule 23(e)(2)(A), and to
ensure the effectiveness of any proposed and actual method(s) used to distribute relief
to the class, including the method(s) of processing class-member claims under Rule
23(e)(2)(C)(ii), and to ensure that the best notice that is practicable under the

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circumstances is used in connection with any communication with members of the
class.
G.

Subpoena of Discovery Material in Another Action
1.

If any Party (a) is subpoenaed in another action, (b) is served with a

demand in another action to which it is a party, or (c) is served with any other legal
process by one not a party to this action, seeking documents by someone other than that
Party, the Party shall give written notice within five (5) business days of receipt of such
subpoena, demand or legal process, to the Producing Party and shall object to its
production for a period of time not to exceed twenty (20) days after such Party’s receipt
of such subpoena at which time the Producing Party shall be solely responsible for
seeking such relief from the Court which issued the subpoena duces tecum as the
Producing Party may deem appropriate, and be solely responsible for any briefing that
may be required by the Court which issued the subpoena duces tecum.
H.

Miscellaneous
1.

Any of the notice requirements herein may be waived, in whole or in part,

but only in writing or electronically signed by the Party, the Producing Party, or counsel
for either against whom such waiver will be effective.
2.

Should any dispute or issue arise concerning the scope or application of

this Supplemental Order or the nature and extent of the documents or information to be
supplied by any party pursuant to this Supplemental Order as part of their agreement
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to participate in continued negotiations regarding Class Notice and selection of a TPCA
in this action, the Parties shall seek the assistance of Magistrate Judge Robert Numbers
who has been appointed to this case to work with the Parties to reach an agreement on
proposed terms for Class Notice and selection of a TPCA. If those efforts fail, and only
to the extent that any such dispute concerns the scope or application of this
Supplemental Order, the Parties shall, within ten (10) days of the date on which the
efforts pursuant to this paragraph to resolve any dispute concerning the scope or
application of this Supplemental Order have failed, request appropriate action by U.S.
Magistrate Judge Robert T. Numbers, II who will be responsible for the interpretation
and enforcement of the scope or application of this Supplemental Order. Every
individual who receive documents agrees to subject himself or herself to the jurisdiction
of this Court for the purpose of any proceedings related to performance under,
compliance with, or violation of this Supplemental Order. The Parties are not waiving,
and hereby preserve, the ability to seek permission from U.S. Magistrate Judge Robert
T. Numbers, II to conduct formal discovery pursuant to the Federal Rules of Civil
Procedure if the parties are unable to agree on Class Notice and selection of a TPCA,
including but not limited to the ability to assert objections to the production or
admissibility of documents.
3.

The Parties agree to be bound by the terms of this Supplemental Order

pending the entry by the Court of this Supplemental Order, or an alternative thereto
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which U.S. Magistrate Judge Robert T. Numbers, II may determine is appropriate to
implement the requirements of Federal Rules of Civil Procedure Rule 23(e)(1)(B), and
any violation of its terms shall be subject to the same sanctions and penalties, as if this
Supplemental Order has been entered by the Court.
SO ORDERED, this the ___ day of April, 2020.
Dated: April 21, 2020
______________________________________
Robert T. Numbers, II
United States Magistrate Judge
__________________________________
ROBERT T. NUMBERS, II
U.S. Magistrate Judge

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