Guisasola v. Crossmark, Inc

Filing 50

ORDER denying 37 Plaintiff's Motion to Compel; granting 39 Defendant's Motion for Protective Order by Judge Marsha J. Pechman.(MD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TAMALA GUISASOLA,

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CASE NO. C13-1337-MJP

Plaintiff,

ORDER DENYING MOTION TO
COMPEL AND GRANTING
MOTION FOR PROTECTIVE
ORDER

v.
CROSSMARK, INC,
Defendant.

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This matter comes before the Court on two discovery motions. First, Plaintiff moves to

17 compel Defendant Crossmark to produce deposition transcripts. (Dkt. No. 37). (Dkt. No. 38.)
18 Second, Defendant moves for entry of a protective order. (Dkt. No. 39.) The Court reviewed the
19 motions, the responses, the replies, and all related papers. The Court GRANTS Defendant’s
20 motion (Dkt. No. 39) and DENIES Plaintiff’s motion (Dkt. No. 37.)
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Background
This is an action for unpaid wages. Ms. Guisasola alleges her former employer,

23 Crossmark, did not pay her for work performed and/or paid her at improper rates. (Dkt. No. 1 at
24 4.) She claims these practices violated the Fair Labor Standards Act, 29 U.S.C. §§201.
ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 1

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Ms. Guisasola originally brought her claims as part of a putative class action in the

2 Eastern District of Pennsylvania. (Dkt. No. 42-1 at 2.) In November 2012, the Pennsylvania
3 Court denied plaintiffs’ motion for class certification, finding that class members were not
4 similarly situated. Postiglione v. Crossmark, Inc., 2012 WL 5829793, at *7 (E.D.Pa. Nov. 15,
5 2012). After the dismissal of that case, Ms. Guisasola sued Crossmark in this Court.
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Discussion

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A. Ms. Guisasola Motion to Compel

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“Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any

9 nonprivileged matter that is relevant to any party's claim or defense....” Fed.R.Civ.P. 26(b)(1).
10 “Relevant information need not be admissible at the trial if the discovery appears reasonably
11 calculated to lead to the discovery of admissible evidence.” Id.
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Plaintiff asks this Court to compel the deposition transcripts of Crossmark employees

13 taken as part of other litigation. (Dkt. No. 37 at 1.) These transcripts are subject to protective
14 orders from other courts. (Dkt. No. 42 at 9.) Nonetheless, Plaintiff asserts these depositions are
15 relevant to her claim “that Crossmark had actual or constructive knowledge that she was not paid
16 for all her time worked.” (Dkt. No. 37 at 4.)
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The crux of the parties’ dispute is relevance. But, the Court does not decide that issue

18 because Plaintiff brought this matter to the wrong court. While deposition transcripts may
19 advance “the interests of judicial economy by avoiding the wasteful duplication of discovery,”
20 under the Ninth Circuit’s decision in Foltz v. State Farm Mutual Automobile Insurance Co., it is
21 “the court that issued the [protective] order [that] is in the best position to make the relevance
22 assessment for it presumably is the only court familiar with the protected discovery.” 331 F.3d
23 1122, 1132 (9th Cir. 2003). Given that these documents are subject to other courts’ protective
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 2

1 orders, the Court DENIES the motion until the issuing courts modify those protective orders. Id.
2 at 1133 (“once the district court has modified its protective order….the disputes over the ultimate
3 discoverability of specific materials covered by the protective order must be resolved by the
4 collateral courts.”)1 The motion is DENIED without prejudice. Plaintiff may bring a renewed
5 motion should the issuing courts modify the protective orders.
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B. Defendant’s Motion for a Protective Order

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In a related motion, Crossmark moves for a protective order to preclude Plaintiff’s

8 counsel from disclosing confidential discovery produced in this case to litigants in other cases.
9 (Dkt. No. 37 at 5.) Crossmark agreed to allow Plaintiffs in all of the cases before this Court to
10 share discovery. (Dkt. No. 37-1 at 3.) In contrast, Plaintiff wants to add language to this
11 District’s model protective order that would allow it to share Crossmark’s confidential
12 documents with any other Postiglione plaintiff. (Dkt. No. 38 at 5.) Plaintiff’s proposition is
13 unworkable: this Court would be tasked with policing discovery far beyond this case and its
14 jurisdiction. The Ninth Circuit’s decision in Foltz establishes the procedure for collateral
15 litigants to seek access to confidential discovery. Ms. Guisasola must follow that protocol.
The Court GRANTS the motion and ADOPTS the district’s model protective order, with

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17 the other modifications agreed to by the parties. The Order is as follows:
18 PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary, or

20 private information for which special protection may be warranted. Accordingly, the parties
21 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
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The Court is also skeptical of Plaintiff’s suggestion that Crossmark can simply photocopy the
deposition transcripts and supply them by email. Such a practice would likely conflict with
24 Crossmark’s agreement with the court reporter for each deposition.
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 3

1 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
2 protection on all disclosures or responses to discovery, the protection it affords from public
3 disclosure and use extends only to the limited information or items that are entitled to
4 confidential treatment under the applicable legal principles, and it does not presumptively entitle
5 parties to file confidential information under seal.
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1.1

For purposes of this Stipulated Protective Order, the terms “this action,” “this

7 lawsuit,” “this litigation,” and “this case” shall refer collectively to the cases currently pending
8 before this Court as Tamela Guisasola v. CROSSMARK, Inc., No. C13-1337, Stephen Nick and
9 Patricia Kaiser v. CROSSMARK, Inc., No. C13-1335, Bruce Nielsen v. CROSSMARK, Inc., No.
10 C13-1334, and Sally Wardell v. CROSSMARK, Inc., No. C13-1331, as well as any other action
11 involving any of the Plaintiffs Guisasola, Kaiser, Nick, Nielsen, and Wardell that may arise as a
12 result of any order by the Court to sever and/or consolidate any or all of the aforementioned
13 cases (hereinafter, “the Washington Cases”). The parties agree that confidential materials and
14 information produced in any one of the Washington Cases may be disclosed to persons in any of
15 the other Washington Cases who are qualified to receive such confidential materials or
16 information as defined in Section 4.2 below, subject to all other provisions of this Stipulated
17 Protective Order. Such agreement is made only for the sake of streamlining the discovery
18 process, and does not represent any concession by CROSSMARK that any of the Washington
19 Cases are “related” or should be consolidated.
20 2.

“CONFIDENTIAL” MATERIAL

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“Confidential” material that CROSSMARK believes is confidential and should be

22 protected shall include the following documents and tangible things produced or otherwise
23 exchanged: employment records and/or private personal information of the Plaintiff and other
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 4

1 current or former employees, such as evaluations, disciplinary actions, payroll records, personal
2 identifying information, financial information, and confidential information about employee
3 compensation;

commercially

sensitive

and/or

trade

secret

information

relating

to

4 CROSSMARK’s business plans, marketing strategies, and budgeting methods, as well as its
5 proprietary methods of assigning, organizing, managing, and reporting employee work
6 assignments; confidential information relating to CROSSMARK’s business arrangements with
7 third party customers; trade secret information relating to the technical characteristics of the
8 proprietary software used by CROSSMARK for employee time reporting and work
9 management; sensitive technical information relating to the security protocols and backup
10 procedures of CROSSMARK’s computer systems; and such other documents or information the
11 disclosure of which CROSSMARK reasonably and in good faith believes could place
12 CROSSMARK at a competitive disadvantage, breach duties of confidentiality CROSSMARK
13 owes to non-parties, and/or intrude on the privacy rights of non-parties.
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Plaintiffs take no position on the appropriateness of any particular designation at this

15 time, and does not agree that the above-described documents are necessarily warranting of the
16 Court’s protection. Nonetheless, to facilitate discovery and in the spirit of cooperation, Plaintiffs
17 agree to entry of this stipulated order.
18 3.

SCOPE

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The protections conferred by this agreement cover not only confidential material (as

20 defined above), but also (1) any information copied or extracted from confidential material; (2)
21 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
22 conversations, or presentations by parties or their counsel that might reveal confidential material.
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 5

1 However, the protections conferred by this agreement do not cover information that is in the
2 public domain or becomes part of the public domain through trial or otherwise.
3 4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

Basic Principles. A receiving party may use confidential material that is disclosed

5 or produced by another party or by a non-party in connection with this case only for prosecuting,
6 defending, or attempting to settle this litigation. Confidential material may be disclosed only to
7 the categories of persons and under the conditions described in this agreement. Confidential
8 material must be stored and maintained by a receiving party at a location and in a secure manner
9 that ensures that access is limited to the persons authorized under this agreement.
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4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

11 ordered by the court or permitted in writing by the designating party, a receiving party may
12 disclose any confidential material only to:
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(a)

the receiving party’s counsel of record in this action, as well as employees of

14 counsel to whom it is reasonably necessary to disclose the information for this litigation;
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(b)

the officers, directors, and employees (including in house counsel) of the

16 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
17 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
18 designated;
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(c)

experts and consultants to whom disclosure is reasonably necessary for this

20 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)

the court, court personnel, and court reporters and their staff;

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(e)

copy or imaging services retained by counsel to assist in the duplication of

23 confidential material, provided that counsel for the party retaining the copy or imaging service
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 6

1 instructs the service not to disclose any confidential material to third parties and to immediately
2 return all originals and copies of any confidential material;
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(f)

during their depositions, witnesses in the action to whom disclosure is reasonably

4 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
5 A), unless otherwise agreed by the designating party or ordered by the court. Pages of
6 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
7 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
8 under this agreement;
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(g)

the author or recipient of a document containing the information or a custodian or

10 other person who otherwise possessed or knew the information.
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4.3

Filing Confidential Material. Before filing confidential material or discussing or

12 referencing such material in court filings, the filing party shall confer with the designating party
13 to determine whether the designating party will remove the confidential designation, whether the
14 document can be redacted, or whether a motion to seal or stipulation and proposed order is
15 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
16 standards that will be applied when a party seeks permission from the court to file material under
17 seal. Pursuant to Local Civil Rule 5(g)(3), it shall be solely the responsibility of the designating
18 party, not the filing party, to defend or explain the confidential designation to the Court.
19 5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

21 or non-party that designates information or items for protection under this agreement must take
22 care to limit any such designation to specific material that qualifies under the appropriate
23 standards. The designating party must designate for protection only those parts of material,
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 7

1 documents, items, or oral or written communications that qualify, so that other portions of the
2 material, documents, items, or communications for which protection is not warranted are not
3 swept unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

5 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
6 unnecessarily encumber or delay the case development process or to impose unnecessary
7 expenses and burdens on other parties) expose the designating party to sanctions.
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If it comes to a designating party’s attention that information or items that it designated

9 for protection do not qualify for protection, the designating party must promptly notify all other
10 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

12 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
13 ordered, disclosure or discovery material that qualifies for protection under this agreement must
14 be clearly so designated before or when the material is disclosed or produced.
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(a)

Information in documentary form: (e.g., paper or electronic documents and

16 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
17 the designating party must affix the word “CONFIDENTIAL” to each page that contains
18 confidential material. If only a portion or portions of the material on a page qualifies for
19 protection, the producing party also must clearly identify the protected portion(s) (e.g., by
20 making appropriate markings in the margins).
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(b)

Testimony given in deposition or in other pretrial or trial proceedings: the parties

22 must identify on the record, during the deposition, hearing, or other proceeding, all protected
23 testimony, without prejudice to their right to so designate other testimony after reviewing the
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 8

1 transcript. Any party or non-party may, within fifteen days after receiving a deposition transcript,
2 designate portions of the transcript, or exhibits thereto, as confidential. (c) Other tangible items:
3 the producing party must affix in a prominent place on the exterior of the container or containers
4 in which the information or item is stored the word “CONFIDENTIAL.” If only a portion or
5 portions of the information or item warrant protection, the producing party, to the extent
6 practicable, shall identify the protected portion(s).
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5.3

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

8 designate qualified information or items does not, standing alone, waive the designating party’s
9 right to secure protection under this agreement for such material. Upon timely correction of a
10 designation, the receiving party must make reasonable efforts to ensure that the material is
11 treated in accordance with the provisions of this agreement.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any party or non-party may challenge a designation of

14 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
15 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
16 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
17 challenge a confidentiality designation by electing not to mount a challenge promptly after the
18 original designation is disclosed.
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6.2

Meet and Confer. The parties must make every attempt to resolve any dispute

20 regarding confidential designations without court involvement. Any motion regarding
21 confidential designations or for a protective order must include a certification, in the motion or in
22 a declaration or affidavit, that the movant has engaged in a good faith meet and confer
23 conference with other affected parties in an effort to resolve the dispute without court action. The
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 9

1 certification must list the date, manner, and participants to the conference. A good faith effort to
2 confer requires a face-to-face meeting or a telephone conference.
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6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

4 intervention, the designating party may file and serve a motion to retain confidentiality under
5 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
6 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
7 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
8 other parties) may expose the challenging party to sanctions. All parties shall continue to
9 maintain the material in question as confidential until the court rules on the challenge.
10 7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

11 LITIGATION
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If a party is served with a subpoena or a court order issued in other litigation that compels

13 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
14 party must:
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(a)

promptly notify the designating party in writing and include a copy of the

16 subpoena or court order;
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(b)

promptly notify in writing the party who caused the subpoena or order to issue in

18 the other litigation that some or all of the material covered by the subpoena or order is subject to
19 this agreement. Such notification shall include a copy of this agreement; and
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(c)

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

21 designating party whose confidential material may be affected.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 10

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

2 material to any person or in any circumstance not authorized under this agreement, the receiving
3 party must immediately (a) notify in writing the designating party of the unauthorized
4 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,
5 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
6 this agreement, and (d) request that such person or persons execute the “Acknowledgment and
7 Agreement to Be Bound” that is attached hereto as Exhibit A.
8 9.

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 the
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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-discovery
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order or agreement that provides for production without prior privilege review. Parties shall
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confer on an appropriate non-waiver order under Fed. R. Evid. 502.
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10.

RESERVATION OF RIGHTS

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Stipulating to entry of this Order, agreeing to produce or producing confidential material, or
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otherwise complying with the terms of this Order will not:
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A. Prejudice in any way the rights of the parties to object to the production of
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documents they consider not subject to discovery;
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B. Operate as an admission by any party that the restrictions and procedures set
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forth herein constitute adequate protection for any particular information
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deemed by any party to be confidential material;
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
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C. Prejudice in any way the rights of any party to object to the authenticity or

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admissibility into evidence of any document, testimony, or other evidence

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subject to this Order;

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D. Prejudice in any way the rights of a party as to whether any confidential

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material should be subject to the terms of this Order; or

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E. Prejudice in any way the rights of a party to petition the Court for a further

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protective order relating to any purportedly confidential material.

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NON TERMINATION AND RETURN OF DOCUMENTS

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At the end of the litigation, the receiving party shall not be required to return or destroy,

10 but merely to acknowledge that any and all “CONFIDENTIAL” documents are to be maintained
11 confidential, and are not to be used or disclosed otherwise than as permitted by this Order. The
12 parties specifically acknowledge that the receiving party is entitled to retain one archival copy
13 (paper or electronic or both) of all documents produced in the litigation, even if such materials
14 contain confidential material.
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The confidentiality obligations imposed by this agreement shall remain in effect until a

16 designating party agrees otherwise in writing or a court orders otherwise.
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Conclusion
The Court DENIES Plaintiff’s motion (Dkt. No. 37), because it is the courts that issued

19 the protective orders, not this one, which determines if Ms. Guisasola should have access to the
20 already conducted and protected discovery. The Court GRANTS Defendant’s motion (Dkt. No.
21 39) for a protective order.
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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 12

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The clerk is ordered to provide copies of this order to all counsel.

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Dated this 25th day of August, 2014.

A

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Marsha J. Pechman
Chief United States District Judge

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ORDER DENYING MOTION TO COMPEL AND
GRANTING MOTION FOR PROTECTIVE
ORDER- 13