Lopez et al v. Ham Farms, LLC et al

Filing 73

CONSENT PROTECTIVE ORDER REGARDING EARLY MEDIATION - Signed by Chief Judge James C. Dever III on 5/1/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-329-D

ADAN LOPEZ, FRANCISCO MENDEZ, EZEQUIEL
ABURTO-:HERNANDEZ, ELENA RAFAEL- PERALTA,
JOSE PABLO SANDOVAL-MONTALVO, and JOSE
JIMENEZ-OLIVAREZ, and ALEJANDRO MARTINEZ-)
MENDEZ, on behalf of themselves and
)
other similarly situated persons,
)
)

Plaintiffs,
'i}

v.
HAM FARMS, LLC f/k/a HAM FARMS, INC.,
HAM PRODUCE, LLC f/k/a HAM PRODUCE
COMPANY, INC., ISMAEL PACHECO, PACHECO
CONTRACTORS, INC., HUGO MARTINEZ,
GUTIERREZ HARVESTING, LLC, ROBERTO
TORRES-LOPEZ, 5 G HARVESTING, LLC,
RODRIGO GUTIERREZ-TAPIA, SR., and
CIRILA GARCIA-PINEDA,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Defendants.
_______________________________________ )
CONSENT PROTECTIVE ORDER REGARDING EARLY MEDIATION

The

parties

near future,
Plan.

have

agreed

to mediate

as outlined in the Rule 26(f)

To facilitate settlement,

informal

exchange

of

documents

"Mediation Documents").

their

dispute

in

the

Report and Discovery

the parties have agreed to an
prior

to

the

mediation

(the

The parties have agreed to the entry of ,

this Consent Protective Order to protect against disclosure of
the Mediation Documents.

Therefore,

it appearing to the Court there is good cause to

enter an order to protect certain Mediation Documents:
IT IS HEREBY ORDERED that the Parties shall be governed by
the

following

terms

and

conditions

in

connection

with

the

production of Mediation Documents.
A.

Scope of Protective Order

1.

This Order and any amendments or modifications hereto

("Protective

Order")

shall

govern

the

production

of Mediation

Documents.
a.
copies,

This

Protective

excerpts,

descriptions,
containing,

Order

abstracts,

notes,

or

charts,

other

reflecting,

or

shall

forms

also

apply

to

any

analyses,

summaries,

recorded

information

of

disclosing

any

such

Mediation

Documents.
b.

The Mediation Documents are being produced prior

to and potentially over the course of early mediation between
the parties to be held in the near future.
If

c.
cancelled,

the

opposing counsel
shall

be

the

mediation

Mediation
or,

promptly

if

is

Documents

\

not

will

conducted
not

be

or

produced

is
to

already produced to opposing counsel,

returned

(along

Producing Party.

2

with

all

copies)

to

the

produc.ing

otherwise

Unless

d.

party

successful,

agreed

producing

or

in

parties,

writing
if

by

mediation

counsel shall return all Mediation Documents

with any copies)

to the Producing Party.

the
is

(along

Without limiting

th~

reasons for which retention of the Mediation Documents may be
needed,

the

parties

parties

may need

acknowledge
temporarily

to

purposes

related to

but

limited

not

that

retain

implementation of

to,

issues

related

the

receiving

certain

a

documents

settlement,

to

party

or
for

including

certification

of

a

settlement class or determination of compensation due individual
class members.
e.
counsel

shall

If

the

return

copies) within five

mediation
the

is

not

successful,

Mediation Document:s

(along

receiving
with

all

(5) days of impasse to the Producing Party,

unless the producing party or parties have otherwise agreed in
writing.
(

B.

Definitions

1.

"Party" means any named plaintiff or defendant in this

action, including plaintiff's or defendant's counsel of record.
2.

"Producing Party":

a

Party that produces Mediation

Documents in this action.
Mediation

Documents,

furnished prior to or as part of early mediation,

regarded by

3.

"CONFIDENTIAL"

shall

mean

3

the Producing Party as confidential and/or private information,
including

proprietary

commercially

data,

sensitive

trade

secrets,

information,

other

valuable

confidential

and

or

private

information concerning parties, witnesses, and persons not party
to

this

action,

confidential

and/or

informatioh

commercially
designated

to the procedures set forth below.

sensitive

or

otherwise

as '"CONFIDENTIAL"

pursuant

The term "documents" shall

be broadly construed to include information that is recorded in
any form,

including but not limited to hard copy, electronically
"Documents"

stored information, and audio and video recordings.
shall not, however, include attorney work product.
"ATTORNEYS'

4.

CONFIDENTIAL
faith

EYES

Information

believes

is

so

Information"

ONLY

that

a

sensitive

party
that

shall

mean

reasonably and

in

good

it

be

made

should

not

available to other parties or their employees and is designated
"ATTORNEYS'

ONLY"

pursuant

to

CONFIDENTIAL Information that

below.

ONLY

EYES

EYES

Information

shall

also

the

procedures

set

forth

is designated ATTORNEYS'
be

deemed

designated

CONFIDENTIAL.
C.

Confidentiality

1.

Mediation

Documents,

specifically

including

designated as Confidential or Attorney Eyes Only,

those

shall be used

solely for this litigation and the preparation for mediation in

4

this case and not for any other purpose whatsoever,
without
any

limitation any other

business

or

including

litigation,
purpose

competitive

labor organizing,
function.

or

or

Mediation

Documents shall not be distributed, disclosed, or made available
to anyone except as authorized in this Protective Order.
2.

Mediation Documents must be stored and maintained at a

location and in a secure manner that ensures access is limited
to the persons authorized under the Protective Order.
D.

Procedure for Designating Materials

1.

A Producing Party may designate Mediation j Documents as

"CONFIDENTIAL"
Party

or

reasonably

definitions

set

information

as

as

"ATTORNEY

and

in

forth

in

EYES

good

ONLY"

faith

paragraph

"CONFIDENTIAL"

and

B.

that

the

believes
The

"ATTORNEY

Producing
meets

designation
EYES

ONLY"

the
of
for

purposes of this Protective Order shall be made in the following
manner and shall further be consistent with any applicable Local
Rule

of

the

United

District of North
2.
EYES

By

ONLY"

States

District

Court

for

the

Eastern

C~rolina:

affixing

the

to Mediation

legend

"CONFIDENTIAL"' or

Documents

"ATTORNEY

containing any confidential

information at the time such materials are produced, or as soon
thereafter as the Party seeking protection becomes aware of the

5

confidential nature of the information disclosed and sought to
be protected hereunder.
3.

Before

disclosing

Mediation

Documents

designated

as

ATTORNEY EYES ONLY or CONFIDENTIAL to a bona fide expert or bona
fide

consultant

pursuant

to

this

subsection,

the

following

procedures shall be employed:
a.

Counsel shall:

(i)

notify,

e-mail or overnight delivery or fax,

in writing by either

counsel for the Producing

Party designating the Information CONFIDENTIAL or ATTORNEY EYES
ONLY of their desire to disclose such CONFIDENTIAL or ATTORNEY
EYES

ONLY

Information

consultant;
attached

(ii)

hereto

to

obtain
as

a
a

bona

fide

written

Exhibit

A,

expert

or

declaration,

from

each

in

such

bona

fide

the

form

expert

or

consultant; and (iii) provide to counsel for the Producing Party
a copy of that declaration.
b.

If no objection to such disclosure is made by the

designating party within two business days of receipt of such
notification and declaration, counsel shall be free to make such
disclosure to the designated expert or consultant, who shall be
bound by the signed declaration.
4.

All

Information

that

ATTORNEY EYES ONLY under this
confidential

and

shall

not

be

is

designated

CONFIDENTIAL

or

Protective Order shall be kept
given,
6

shown,

made

available,

,·

discussed or otherwise communicated in any manner
either directly or indirectly,
receive

the

Protective

Mediation

to any person not authorized to

Documents

under

CONFIDENTIAL

Order.

("disclosed"),

the

or

terms · of

ATTORNEY

this

EYES

ONLY

Information received by any authorized persori shall be used only
for

purposes

of

this

litigation

and

for

no

other

purpose,

including but not limited to labor organizing.
5.

In no

case

shall

Information designated CONFIDENTIAL

or ATTORNEY EYES ONLY be disclosed to any person or entity who
competes

directly

organization,

indirectly

including

representatives,
Consent

or

its

employees

Protective

Robert J. Willis,

Order

or

with

Defendant

officers,
agents.

understand

or

current
All

that

any
or

parties

the

Law

labor
former

to

this

Office

of

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

(hereinafter

referred to as "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.
J.

Willis,

from

Willis,
the

P .A.

receipt,

and its sole attorney,
review,

and/or

use

Robert
of

all

\_.-

information

or

documents

that

are .produced

pursuant

to

this.

Consent Protective Order solely in the capacity of plaintiffs'

7

co-counsel in this litigation and in no other capacity, and that
he will not use or disclose any information produced pursuant to
this Agreement,

including Confidential

the

third-parties,

benefit

of

Information,

including

FLOC

as

to or

well

for

as

its

officers or employees.
6.

If,

through

inadvertence,

CONFIDENTIAL or ATTORNEY EYES
designating

it

as

party

a

produces

a

ONLY Mediation Document without

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

CONFIDENTIAL

or

Protective

Order.

parties

shall

ATTORNEY'\ EYES
To

the

treat

ONLY

extent

such

Information

Information

that

under

as

this

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 Order.
7.

This 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 Order, subject to the
approval of the Court.

In the event that any :such application
8

is made,

the producing party shall have the burden of proof to

demonstrate good cause under Rule 26(c) of the Federal Rules of
Civil Procedure for the designation and continued maintenance of
any

particular

document,

discovery,

and/or

information

as

CONFIDENTIAL or ATTORNEY EYES ONLY.
8.

Before filing any information that has been designated

"Confidential
motions

or

Information"

other

papers

with
that

the

Court,

disclose

any

or

any pleadings,

such

information,

counsel shall confer with counsel for the party that produced
the information so designated about how it should be filed.
the party that . produced the

information so designated desires

that the materials be filed under seal,
shall

file

the materials

79.2,

EDNC,

with notice

If

then the filing party

in accordance with Local

Civil Rule

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,

party desiring that the materials be maintained under seal

the

~hall

file with the Court a Motion to Seal and supporting memorandum
of

law

specifying

restricting public

the

interests

access

to

the

which

would

information.

be

served

by

The party that

initially filed the materials need not file any such Motion to
Seal

or

otherwise

defend

materials remain sealed.

another

party's

desire

The Court will grant
9

that

the

the Motion to

Seal

only after providing

opportunity for
weighing

the

interests
records,

adequate

notice

interested parties
interests

favoring
and upon

finding

to

object,
the

to

access
that

the

by

advanced

public

to

judicial

the

public

and

after carefully

movant

and

those

documents

and

interests advanced by the

movant override any common law or constitutional right of public
access which may attach to the information. Documents submitted
under seal in accordance with this paragraph will remain under
seal pending the Court's ruling.
information be
Motion

to

maintained under

Seal,

then

the

If the party desiring that the
seal

materials

does
will

not
be

timely file

a

deemed unsealed,

without need for order of the Court.
9.

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 Order.
10.

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 Rec,ard;

b.

To

the

named

Plaintiffs

or

Defendants,

all

of

whom must also abide by this order;
c.

Bona fide experts or bona fide consultants of the

Receiving Party to whom disclosure is reasonably necessary for
10

this litigation and who have signed the "Agreement To Be Bound
By Protective Order" attached as Exhibit A;
d.

the

designated

mediator

who

is

assigned

to

counsel

to

photocopy

or

mediate this matter, and his or her staff;
e.
image

services

documents

or

to

illustrations or other
litigation and who have

retained
prepare

by

charts,

demonstrative
signed the

summaries,

materials

timelines,

to be

used

in

"Agreement To Be Bound By

Protective Order" attached as Exhibit B; and
E.

Disclosure

1.

Unless otherwise ordered by the Court, or permitted in

writing by the Producing Party, ATTORNEY EYES ONLY material may
be disclosed only to the following:
a.

Counsel of Record;

b

the Court and Court personnel;

c.

the

designated

mediator

who

is

assigned

to

counsel

to

photocopy

or

mediate this matter, and his or her staff;
d.
image

services

documents

illustrations

or

to

or other

litigation and who have

retained
prepare

by

charts,

summaries,

demonstrative materials
signed the

to

timelines,
be used

in

"Agreement To Be Bound By

Protective Order" attached as Exhibit B;
e.

professional

Vendors
11

to

which

disclosure

is

reasonably necessary for this litigation and who have signed the
"Agreement To Be Bound By Protective Order" attached as Exhibit
B.

2.

Nothing within this paragraph or this

Order permits

disclosure of ATTORNEY EYES ONLY material to any non-party.
F.

Effect of Production

1.

This

Protective

Order

is

entered

solely

for

the

purpose of facilitating an early mediation between the parties
to

this

action.

participating
rights

in

By consenting to
mediation,

no

this

Party

Protective Order and

releases

or

waives

its

(including but not limited to the right to object to the

production of documents during the course of discovery), claims,
or defenses,

including those related to a motion to disqualify

counsel.
G.

1.
is

Subpoena of Discovery Material in Another Action

If any Party (a)

served with a

party, or (c)

demand

is subpoenaed in another action,
in another action to which

it

(b)
is

a

is served with any other legal process by one not

a party to this action,

seeking Mediation Documents by someone

other

the

within

than
five

that
(5)

Party,

business

Party

days

of

shall

give

receipt

of

written, notice
such

subpoena,

demand or legal process, to the Producing Party and shall object
to

its

production

until

either

the
12

original

producing

party

consents or the Court orders production of all or some of the
Mediation Documents.

H.

Miscellaneous

1.

Any of the notice requirements herein may be waived,

in whole or in part,

but only in writing signed by the Party,

the

or

Producing

Party,

counsel

for

either

against

whom

such

waiver will be effective.
Should any dispute or issue arise concerning the scope

2.

or application of this Protective Order or the nature and extent
of

the

documents

or

information

to

be

supplied by

any party

pursuant to this Protective Order as part of their agreement to
participate in early mediation in this action, the parties shall
seek the assistance of the mediator appointed to this

case to

work with the parties to resolve any such disputes in any manner
that the parties and the mediator deem appropriate.
efforts

fail,

and

only

to

the

extent

that

any

If

such

those

dispute

concerns the scope or application of this Protective Order,
parties
which

will,

the

within

efforts

ten

(10)

pursuant

to

calendar
this

days

of

paragraph

the
to

date

on

resolve

any

dispute concerning the scope or application of this
Order have failed,
the

Eastern

the

Protective

request revi-ew by the U.s. District Court for

District

of

North

Carolina,

which

will

be

responsible for the interpretation and enforcement of the scope

13

or

application

nature

and

of

this

extent

Protective

of

the

Order,

documents

but

or

Every individual who

as

to

information

voluntarily supplied by any party pursuant
Order.

not

to

this

to

the
be

Protective

receives any Mediation 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 Order.
in voluntary,
and

hereby

pursuant

informal discovery,
preserve,

to

the

mediation is not
ability

to:

the

Federal

Rules

1)

assert

of

admissibility

the parties are not waiving,

ability

successful,

to

of

seek

Civil

formal

objections

to

including

discovery

Procedure

including but not

documents,

By engaging

if

the

limited to the

the

production

documents

that

or
were

produced during the informal discovery period; .2) seek to compel
the

production

of

documents,

including

documents

that

were

I

requested but not produced during the informal discovery period;
and 3)

serve discovery requests that

seek documents

that were

previously produced during the informal discovery period.
The

Parties

Protective
Protective
satisfactory

agree

Order

pending

c

order,
to

to

all

or

be
the

an

parties,

bound
entry

by

the

terms

of

this

by

the

Court

of

this

alternative
and

14

thereto

any violation

of

which
its

is

terms

u

)

shall be subject to the same sanctions and penalties, as if this
Protective Order had been entered by the Court.

SO ORDERED. This _l_ day of

MJ

Chief

15

2018.

C. DEVER III
United States

District

Judge

EXHIBIT A

My name

1.

is

I

have

personal knowledge of the facts set forth in this Declaration,
and

if

called

and

sworn

as

a

witness,

I

would

testify

competently to those facts.
2.

This statement is submitted in support of my request

for access to materials under the Consent Protective Order in
this action.
a

I have been retained by

3.

this action, as a consultant or expert witness.

party

to

My title is

and my employer is
----------------------4.
My professional relationship with the party for whom I
1

am retained in this proceeding and its personnel is strictly as
I identify

a consultant on issues relevant to this proceeding.
here

(by

writing

"none"

or

listing

names,

position,

and

responsibilities)

any member of my immediate family who is an

officer or holds

a

management position with a

action or with any other
advantage

from

access

firm

to

the

that might
material

party in

gain a

this

competitive

disclosed

under

the

education

and

Consent Protective Order:

5.

I have attached the following information:_
A.

a

current

resume
I

describing

my

employment history to date;
B.

a description of the financial interests that I,
my spouse,
entity

and/or my immediate family has in any

that

is

an

interested

party

in. this

proceeding or whose Confidential Information will
16

be reviewed.
6.

I

am

aware

that

Consent

a

Protective

Order

("Protective Order") has been entered in the case of Adan Lopez,
et al. v.

Ham Farms,

cv-329-D,

in the United States District Court,

of North Carolina,
Protective

Order

LLC f/k/a Ham Farms,

Western Division
has

been

given

Inc.,

me.

5:17-

Eastern District

("Court").
to

Case No.

A copy of that
I

have

carefully

reviewed its terms and conditions.
7.

I

agree

tangible things
b~

that

documents,

information,

("Information") designated as

testimony,

CON~!DENTIAL

and
shall

subject to the terms of the Protective ·Order and agree to

comply with and be bound by the terms of the Protective Order.
8.

Without

limiting the

foregoing,

I

agree

that

I

will

not disclose or discuss any Information designated CONFIDENTIAL
except as allowed by Protective Order.
9.

I agree to use any Information designated CONFIDENTIAL

solely in connection with participation in this action and for
no other purpose.
10.

I

am

aware

that

contempt

sanctions

may

be

entered

against me for violation of the Protective Order.
11.

I

agree

to waive any objections

to

the

exercise of

personal jurisdiction over me by the Court.
I declare under penalty of perjury under the laws of the United
States

of America

that

the

foregoing

correct ..
.:Executed this _ _ day of

17

declaration

is

trUE:!

and

Signature

18

EXHIBIT B
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
BY PROTECTIVE ORDER

I,

[print

or

type

full

name], state:
1.

I reside at

2.

My present occupation or job description is

3.

I

'

agree to keep confidential all information provided

to me in the matters of Adan Lopez,
f/k/a

Ham

pending

in

Farms,

the

Inc.,

United

Case No.
States

District of North Carolina,

et aJ.

v.

Ham Farms,

5:17-cv-329-D,

District

Court

which case

for

the

LLC

is

Eastern

and to be subject to the authority

of that Court in .the event of any violation or dispute related
to this agreement;
4.

I

have

been

informed

of

Protective Order entered in this case,
any

information,

documents

or things

and
and
that

have
I

reviewed

the

will not divulge

are

subject

to

the

Protective Order except in accordance with the provisions of the
Order;
5.

I

state under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.
Executed on

[printed name]
19

[signature]

20

J

J