The opinion
1 Judy H. Juang, CA Bar No. 271147
judy.juang@ogletree.com
2 OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
3 19191 South Vermont Avenue,
Suite 950
4 Torrance, CA 90502
Telephone: 310.217.8191
5 Facsimile: 310.217.8184
6 Attorneys for Plaintiff
SYSCO RIVERSIDE, INC.
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA –EASTERN DIVISION
10
11 SYSCO RIVERSIDE, INC., Case No. 5:19-CV-01352-DDP (KKx)
12 Plaintiff,
STIPULATED PROTECTIVE ORDER
13 v.
14
INTERNATIONAL BROTHERHOOD
15 OF TEAMSTERS LOCAL NO. 495;
INTERNATIONAL BROTHERHOOD
16 OF TEAMSTERS LOCAL NO. 683;
and DOES 1 through 50 being fictitious
17 names of persons whose true names are
otherwise unknown to the plaintiff, but
18 who are the persons assembled at or Complaint Filed: July 23, 2019
near the premises of Sysco Riverside,
Trial Date: None Set
19 Inc.’s facility in Riverside, California, District Judge: Hon. Dean D. Pregerson
whose names will be added by
Magistrate Judge: Hon. Kenly Kiya Kato
20 amendment when ascertained,
21 Defendants.
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23
24
25
26
27
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1 1. A. PURPOSES AND LIMITATIONS
2 Discovery in this action is likely to involve production of confidential,
3 proprietary, or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the Court to enter the
6 following Stipulated Protective Order. The parties acknowledge that this Order does
7 not confer blanket protections on all disclosures or responses to discovery and that the
8 protection it affords from public disclosure and use extends only to the limited
9 information or items that are entitled to confidential treatment under the applicable
10 legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
11 that this Stipulated Protective Order does not entitle them to file confidential
12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
13 followed and the standards that will be applied when a party seeks permission from
14 the court to file material under seal.
15 B. GOOD CAUSE STATEMENT
16 This action is likely to involve trade secrets, customer and pricing lists and other
17 valuable research, development, commercial, financial, technical and/or proprietary
18 information for which special protection from public disclosure and from use for any
19 purpose other than prosecution of this action is warranted. Such confidential and
20 proprietary materials and information consist of, among other things, confidential
21 business or financial information, information regarding confidential business
22 practices, or other confidential research, development, or commercial information
23 (including information implicating privacy rights of third parties), information
24 otherwise generally unavailable to the public, or which may be privileged or otherwise
25 protected from disclosure under state or federal statutes, court rules, case decisions, or
26 common law. Accordingly, to expedite the flow of information, to facilitate the prompt
27 resolution of disputes over confidentiality of discovery materials, to adequately protect
28 information the parties are entitled to keep confidential, to ensure that the parties are
1 permitted reasonable necessary uses of such material in preparation for and in the
2 conduct of trial, to address their handling at the end of the litigation, and serve the ends
3 of justice, a protective order for such information is justified in this matter. It is the
4 intent of the parties that information will not be designated as confidential for tactical
5 reasons and that nothing be so designated without a good faith belief that it has been
6 maintained in a confidential, non-public manner, and there is good cause why it should
7 not be part of the public record of this case.
8
9 2. DEFINITIONS
10 2.1 Action: this pending federal lawsuit.
11 2.2 Challenging Party: a Party or Non-Party that challenges the designation
12 of information or items under this Order.
13 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
14 how it is generated, stored or maintained) or tangible things that qualify for protection
15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
16 Statement.
17 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
18 support staff).
19 2.5 Designating Party: a Party or Non-Party that designates information or
20 items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL.”
22 2.6 Disclosure or Discovery Material: all items or information, regardless of
23 the medium or manner in which it is generated, stored, or maintained (including,
24 among other things, testimony, transcripts, and tangible things), that are produced or
25 generated in disclosures or responses to discovery, or are used in depositions in this
26 matter.
27 //
28 //
1 2.7 Expert: a person with specialized knowledge or experience in a matter
2 pertinent to the litigation who has been retained by a Party or its counsel to serve as
3 an expert witness or as a consultant in this Action.
4 2.8 House Counsel: attorneys who are employees of a party to this Action.
5 House Counsel does not include Outside Counsel of Record or any other outside
6 counsel.
7 2.9 Non-Party: any natural person, partnership, corporation, association, or
8 other legal entity not named as a Party to this action.
9 2.10 Outside Counsel of Record: attorneys who are not employees of a party
10 to this Action but are retained to represent or advise a party to this Action and have
11 appeared in this Action on behalf of that party or are affiliated with a law firm which
12 has appeared on behalf of that party, and includes support staff.
13 2.11 Party: any party to this Action, including all of its officers, directors,
14 employees, consultants, retained experts, and Outside Counsel of Record (and their
15 support staffs).
16 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
17 Discovery Material in this Action.
18 2.13 Professional Vendors: persons or entities that provide litigation support
19 services (e.g., photocopying, videotaping, translating, preparing exhibits or
20 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
21 their employees and subcontractors.
22 2.14 Protected Material: any Disclosure or Discovery Material that is
23 designated as “CONFIDENTIAL.”
24 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
25 from a Producing Party.
26 //
27 //
28 //
1 3. SCOPE
2 The protections conferred by this Stipulation and Order cover not only Protected
3 Material (as defined above), but also (1) any information copied or extracted from
4 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
5 Material; (3) any testimony, conversations, or presentations by Parties or their Counsel
6 wherein Protected Material is used or discussed; and (4) any testimony, conversations,
7 or presentations by Parties or their Counsel that might reveal Protected Material.
8 Any use of Protected Material at trial shall be governed by the orders of the trial
9 judge. This Order does not govern the use of Protected Material at trial.
10
11 4. DURATION
12 Even after final disposition of this litigation, the confidentiality obligations
13 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
14 in writing or a court order otherwise directs. Final disposition shall be deemed to be
15 the later of (1) dismissal of all claims and defenses in this Action, with or without
16 prejudice; and (2) final judgment herein after the completion and exhaustion of all
17 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits
18 for filing any motions or applications for extension of time pursuant to applicable law.
19 Once a case proceeds to trial, information that was designated as CONFIDENTIAL or
20 maintained pursuant to this protective order used or introduced as an exhibit at trial
21 becomes public and will be presumptively available to all members of the public,
22 including the press, unless compelling reasons supported by specific factual findings
23 to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana,
24 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing documents
25 produced in discovery from “compelling reasons” standard when merits-related
26 documents are part of court record). Accordingly, the terms of this protective order do
27 not extend beyond the commencement of the trial unless ordered by the Court. 7.
28 DESIGNATING PROTECTED MATERIAL 7.1 Exercise of Restraint and Care in
1 Designating Material for
2
3 5. DESIGNATING PROTECTED MATERIAL
4 5.1 Exercise of Restraint and Care in Designating Material for Protection.
5 Each Party or Non-Party that designates information or items for protection under this
6 Order must take care to limit any such designation to specific material that qualifies
7 under the appropriate standards. The Designating Party must designate for protection
8 only those parts of material, documents, items, or oral or written communications that
9 qualify so that other portions of the material, documents, items, or communications
10 for which protection is not warranted are not swept unjustifiably within the ambit of
11 this Order.
12 Mass, indiscriminate, or routinized designations are prohibited. Designations
13 that are shown to be clearly unjustified or that have been made for an improper purpose
14 (e.g., to unnecessarily encumber the case development process or to impose
15 unnecessary expenses and burdens on other parties) may expose the Designating Party
16 to sanctions.
17 If it comes to a Designating Party’s attention that information or items that it
18 designated for protection do not qualify for protection, that Designating Party must
19 promptly notify all other Parties that it is withdrawing the inapplicable designation.
20 5.2 Manner and Timing of Designations. Except as otherwise provided in
21 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
22 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
23 under this Order must be clearly so designated before the material is disclosed or
24 produced.
25 Designation in conformity with this Order requires:
26 (a) for information in documentary form (e.g., paper or electronic
27 documents, but excluding transcripts of depositions or other pretrial or trial
28 proceedings), that the Producing Party affix, at a minimum, the legend
1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) to each page that
2 contains Protected Material. If only a portion or portions of the material on a page
3 qualifies for protection, the Producing Party also must clearly identify the protected
4 portion(s) (e.g., by making appropriate markings in the margins).
5 A Party or Non-Party that makes original documents available for inspection
6 need not designate them for protection until after the inspecting Party has indicated
7 which documents it would like copied and produced. During the inspection and before
8 the designation, all of the material made available for inspection shall be deemed
9 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
10 copied and produced, the Producing Party must determine which documents, or
11 portions thereof, qualify for protection under this Order. Then, before producing the
12 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
13 to each page that contains Protected Material. If only a portion or portions of the
14 material on a page qualifies for protection, the Producing Party also must clearly
15 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
16 (b) for testimony given in depositions, that the Designating Party identify
17 and designate as “Confidential,” by written notice to all counsel of record, any portion
18 of the transcript (including, without limitation, typed transcriptions, computer
19 diskettes, audio tapes, and video tapes) and exhibits thereto within 21 days after the
20 date a full and final copy of the transcript has been made available to the deponent or,
21 if applicable, deponent’s counsel (hereinafter, “Designation Period”).
22 The entire transcript (including, without limitation, typed transcriptions,
23 computer diskettes, audio tapes, and video tapes) and all exhibits thereto shall be
24 deemed confidential under the terms of this Protective Order during the Designation
25 Period. The portion or portions of the transcript designated as “Confidential” during
26 the Designation Period shall be treated as Protected Material thereafter and in
27 accordance with the terms of this Stipulated Protective Order.
28 //
1 (c) for information produced in some form other than documentary and for
2 any other tangible items, that the Producing Party affix in a prominent place on the
3 exterior of the container or containers in which the information is stored the legend
4 “CONFIDENTIAL.” If only a portion or portions of the information warrants
5 protection, the Producing Party, to the extent practicable, shall identify the protected
6 portion(s).
7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
8 failure to designate qualified information or items does not, standing alone, waive the
9 Designating Party’s right to secure protection under this Order for such material. Upon
10 timely correction of a designation, the Receiving Party must make reasonable efforts
11 to assure that the material is treated in accordance with the provisions of this Order.
12
13 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
14 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
15 designation of confidentiality at any time that is consistent with the Court’s Scheduling
16 Order.
17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
18 resolution process under Local Rule 37.1 et seq.
19 6.3 The burden of persuasion in any such challenge proceeding shall be on
20 the Designating Party. Frivolous challenges, and those made for an improper purpose
21 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
22 expose the Challenging Party to sanctions. Unless the Designating Party has waived
23 or withdrawn the confidentiality designation, all parties shall continue to afford the
24 material in question the level of protection to which it is entitled under the Producing
25 Party’s designation until the Court rules on the challenge.
26 //
27 //
28 //
1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a Receiving
7 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
8 Protected Material must be stored and maintained by a Receiving Party at a
9 location and in a secure manner that ensures that access is limited to the persons
10 authorized under this Order.
11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
12 otherwise ordered by the court or permitted in writing by the Designating Party, a
13 Receiving Party may disclose any information or item designated “CONFIDENTIAL”
14 only to:
15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
16 as employees of said Outside Counsel of Record to whom it is reasonably necessary
17 to disclose the information for this Action;
18 (b) the officers, directors, and employees (including House Counsel) of the
19 Receiving Party to whom disclosure is reasonably necessary for this Action;
20 (c) Experts (as defined in this Order) of the Receiving Party to whom
21 disclosure is reasonably necessary for this Action and who have signed the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
23 (d) the court and its personnel;
24 (e) court reporters and their staff;
25 (f) professional jury or trial consultants, mock jurors, and Professional
26 Vendors to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
28 //
1 (g) the author or recipient of a document containing the information or a
2 custodian or other person who otherwise possessed or knew the information;
3 (h) during their depositions, witnesses ,and attorneys for witnesses, in the
4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
6 not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
8 by the Designating Party or ordered by the court. Pages of transcribed deposition
9 testimony or exhibits to depositions that reveal Protected Material may be separately
10 bound by the court reporter and may not be disclosed to anyone except as permitted
11 under this Stipulated Protective Order; and
12 (i) any mediator or settlement officer, and their supporting personnel,
13 mutually agreed upon by any of the parties engaged in settlement discussions.
14
15 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
16 OTHER LITIGATION
17 If a Party is served with a subpoena or a court order issued in other litigation
18 that compels disclosure of any information or items designated in this Action as
19 “CONFIDENTIAL,” that Party must:
20 (a) promptly notify in writing the Designating Party. Such notification shall
21 include a copy of the subpoena or court order;
22 (b) promptly notify in writing the party who caused the subpoena or order
23 to issue in the other litigation that some or all of the material covered by the subpoena
24 or order is subject to this Protective Order. Such notification shall include a copy of
25 this Stipulated Protective Order; and
26 (c) cooperate with respect to all reasonable procedures sought to be pursued
27 by the Designating Party whose Protected Material may be affected.
28 If the Designating Party timely seeks a protective order, the Party served with
1 the subpoena or court order shall not produce any information designated in this action
2 as “CONFIDENTIAL” before a determination by the court from which the subpoena
3 or order issued, unless the Party has obtained the Designating Party’s permission. The
4 Designating Party shall bear the burden and expense of seeking protection in that court
5 of its confidential material and nothing in these provisions should be construed as
6 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
7 directive from another court.
8
9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
10 PRODUCED IN THIS LITIGATION
11 (a) The terms of this Order are applicable to information produced by a Non-
12 Party in this Action and designated as “CONFIDENTIAL.” Such information
13 produced by Non-Parties in connection with this litigation is protected by the remedies
14 and relief provided by this Order. Nothing in these provisions should be construed as
15 prohibiting a Non-Party from seeking additional protections.
16 (b) In the event that a Party is required, by a valid discovery request, to
17 produce a Non-Party’s confidential information in its possession, and the Party is
18 subject to an agreement with the Non-Party not to produce the Non-Party’s
19 confidential information, then the Party shall:
20 (1) promptly notify in writing the Requesting Party and the Non-Party
21 that some or all of the information requested is subject to a confidentiality agreement
22 with a Non-Party;
23 (2) promptly provide the Non-Party with a copy of the Stipulated
24 Protective Order in this Action, the relevant discovery request(s), and a reasonably
25 specific description of the information requested; and
26 (3) make the information requested available for inspection by the Non-
27 Party, if requested.
28 //
1 (c) If the Non-Party fails to seek a protective order from this court within
2 14 days of receiving the notice and accompanying information, the Receiving Party
3 may produce the Non-Party’s confidential information responsive to the discovery
4 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
5 produce any information in its possession or control that is subject to the
6 confidentiality agreement with the Non-Party before a determination by the court.
7 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
8 of seeking protection in this court of its Protected Material.
9
10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
12 Protected Material to any person or in any circumstance not authorized under this
13 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
14 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
15 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
16 persons to whom unauthorized disclosures were made of all the terms of this Order,
17 and (d) request such person or persons to execute the “Acknowledgment and
18 Agreement to Be Bound” that is attached hereto as Exhibit A.
19
20 11. UNINTENDED PRODUCTION OF PRIVILEGED OR OTHERWISE
21 PROTECTED MATERIAL – “CLAW BACK” PROVISION
22 When a Producing Party gives notice to Receiving Parties that certain
23 inadvertently produced material is subject to a claim of privilege or other protection,
24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
26 may be established in an e-discovery order that provides for production without prior
27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
28 parties reach an agreement on the effect of disclosure of a communication or
1 information covered by the attorney-client privilege or work product protection, the
2 parties may incorporate their agreement in the stipulated protective order submitted
3 to the court.
4 In furtherance of the discovery process in this case, the parties hereby stipulate
5 that, irrespective of the care taken by the parties prior to production and factors
6 provided in Federal Rule of Evidence 502(b), the production in the course of
7 discovery in this action of any document shall not be deemed to waive whatever
8 attorney-client privilege, work product protection, or other privilege or immunity
9 that would otherwise attach to the document produced or to other documents, as long
10 as the producing party or person, promptly after discovery, notifies the other party or
11 parties of the claim or privilege or other protection or immunity. Upon such notice,
12 the other party or parties shall destroy promptly all copies of the documents or
13 information referred to and notify the producing party or person that it has done so.
14
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
17 person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in this
21 Stipulated Protective Order. Similarly, no Party waives any right to object on any
22 ground to use in evidence of any of the material covered by this Protective Order.
23 12.3 Filing Protected Material. A Party that seeks to file under seal any
24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
25 only be filed under seal pursuant to a court order authorizing the sealing of the specific
26 Protected Material at issue. If a Party's request to file Protected Material under seal is
27 denied by the court, then the Receiving Party may file the information in the public
28 record unless otherwise instructed by the court.
1 13. FINAL DISPOSITION
2 After the final disposition of this Action, as defined in paragraph 4, within 60
3 days of a written request by the Designating Party, each Receiving Party must return
4 all Protected Material to the Producing Party or destroy such material. As used in this
5 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
6 summaries, and any other format reproducing or capturing any of the Protected
7 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
8 must submit a written certification to the Producing Party (and, if not the same person
9 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
10 category, where appropriate) all the Protected Material that was returned or destroyed
11 and (2) affirms that the Receiving Party has not retained any copies, abstracts,
12 compilations, summaries or any other format reproducing or capturing any of the
13 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
14 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
15 legal memoranda, correspondence, deposition and trial exhibits, expert reports,
16 attorney work product, and consultant and expert work product, even if such materials
17 contain Protected Material. Any such archival copies that contain or constitute
18 Protected Material remain subject to this Protective Order as set forth in Section 4
19 (DURATION).
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27 //
28 //
1}}14. Any violation of this Order may be punished by any and all appropriate
2 ||measures including, without limitation, contempt proceedings and/or monetary
3 || sanctions.
4
5 |{ITIS SO STIPULATED, THROUGH COUNSELS OF RECORD.
6
7|/DATED: January 10,2020 ==OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
10 1) a
“aly 4 27 25 on
11 f dW
Judy H. Juang
12 Attorneys for Plaintiff
3 SYSCO RIVERSIDE, INC.
141|/DATED: January 9 , 2020 Law OFFICE OF FLORICE HOFFMAN,
15
16
17
Florce Wegman
18 Florice Hoffitan
Attorneys for Defendant
20
21 |} FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
22
23
251/DATED: _January 13 _, 2020
Honorable Kenly Kiya Kato
26 United States Magistrate Judge
27
28
1A