# Luke Davis v. Laboratory Corporation of America Holdings

> District Court, C.D. California · August 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10038878

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10038878

## Opinion text

1 KELLEY DRYE & WARREN LLP
Tahir L. Boykins (State Bar No. 323441)
2 1800 Century Park East, Suite 600
Telephone: (310) 712-6100
3
tboykins@kelleydrye.com
4
KELLEY DRYE & WARREN LLP
5 Robert I. Steiner (admitted pro hac vice)
101 Park Avenue
6
New York, NY 10178
7 Telephone: (212) 808-7800
rsteiner@kelleydrye.com
8
Attorneys for Defendant
9 Laboratory Corporation of America Holdings
Additional Attorneys on Signature Page
10
11 UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
12
LUKE DAVIS and JULIAN VARGAS, CASE NO. 2:20-CV-00893-FMO-KS
13
individually, and on behalf of all others
14 similarly situated, [Assigned to Fernando M. Olugin]
15 Plaintiff, STIPULATED PROTECTIVE
ORDER
16 v.
17 LABORATORY CORPORATION OF Complaint Filed: January 28, 2020
AMERICA HOLDINGS; and DOES 1
18 through 10,
19 Defendants.
20
21
22
23
24
1 I. PURPOSES AND LIMITATIONS
2 A. 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 following
6
Stipulated Protective Order. The parties acknowledge that this Order does not confer
7
8 blanket protections on all disclosures or responses to discovery and that the protection it
9 affords from public disclosure and use extends only to the limited information or items
10 that are entitled to confidential treatment under the applicable legal principles. The
11
parties further acknowledge, as set forth in Section XIII(C), below, that this Stipulated
12
Protective Order does not entitle them to file confidential information under seal; Civil
13
Local Rule 79-5 sets forth the procedures that must be followed and the standards that
14
will be applied when a party seeks permission from the Court to file material under seal.
15
II. GOOD CAUSE STATEMENT
16
17 A. This action is likely to involve trade secrets, customer and
18 other valuable research, development, commercial, financial, technical and/or
19 proprietary information for which special protection from public disclosure and from use
20
for any purpose other than prosecution of this action is warranted. Such confidential and
21
proprietary materials and information consist of, among other things, confidential
22
business or financial information, information regarding confidential business practices,
23
or other confidential research, development, or commercial information (including
24
25 information implicating privacy rights of third parties), information otherwise generally
26 unavailable to the public, or which may be privileged or otherwise protected from
27 disclosure under state or federal statutes, court rules, case decisions, or common law.
28
1 disputes over confidentiality of discovery materials, to adequately protect information the
2 parties are entitled to keep confidential, to ensure that the parties are permitted
3
reasonable necessary uses of such material in preparation for and in the conduct of trial,
4
to address their handling at the end of the litigation, and serve the ends of justice, a
5
protective order for such information is justified in this matter. It is the intent of the
6
parties that information will not be designated as confidential for tactical reasons and
7
8 that nothing be so designated without a good faith belief that it has been maintained in a
9 confidential, non-public manner, and there is good cause why it should not be part of the
10 public record of this case.
11
III. DEFINITIONS
12
A. Action: This pending federal law suit.
13
B. Challenging Party: A Party or Non-Party that challenges the designation of
14
information or items under this Order.
15
C. “CONFIDENTIAL” Information or Items: Information (regardless of how it
16
17 is generated, stored or maintained) or tangible things that qualify for protection under
18 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
19 Statement.
20
D. Counsel: Outside Counsel of Record and In-house Counsel (as well as their
21
support staff).
22
E. Designating Party: A Party or Non-Party that designates information or
23
items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
24
25 F. Disclosure or Discovery Material: All items or information, regardless of
26 the medium or manner in which it is generated, stored, or maintained (including, among
27 other things, testimony, transcripts, and tangible things), that are produced or generated
28
1 G. 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 an
3
expert witness or as a consultant in this Action.
4
H. In-house Counsel: Attorneys who are employees of a party to this Action.
5
In-house Counsel does not include Outside Counsel of Record or any other outside
6
counsel.
7
8 I. Non-Party: Any natural person, partnership, corporation, association, or
9 other legal entity not named as a Party to this action.
10 J. Outside Counsel of Record: Attorneys who are not employees of a party to
11
this Action but are retained to represent or advise a party to this Action and have
12
appeared in this Action on behalf of that party or are affiliated with a law firm which has
13
appeared on behalf of that party, and includes support staff.
14
K. Party: Any party to this Action, including all of its officers, directors,
15
employees, consultants, retained experts, and Outside Counsel of Record (and their
16
17 support staffs).
18 L. Producing Party: A Party or Non-Party that produces Disclosure or
19 Discovery Material in this Action.
20
M. Professional Vendors: Persons or entities that provide litigation support
21
services (e.g., photocopying, videotaping, translating, preparing exhibits or
22
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
23
their employees and subcontractors.
24
25 N. Protected Material: Any Disclosure or Discovery Material that is designated
26 as “CONFIDENTIAL.”
27 O. Receiving Party: A Party that receives Disclosure or Discovery Material
28
1 IV. SCOPE
2 A. The protections conferred by this Stipulation and Order cover not only
3
Protected Material (as defined above), but also (1) any information copied or extracted
4
from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
5
Material; and (3) any testimony, conversations, or presentations by Parties or their
6
Counsel that might reveal Protected Material.
7
8 B. Any use of Protected Material at trial shall be governed by the orders of the
9 trial judge. This Order does not govern the use of Protected Material at trial.
10 V. DURATION
11
A. Once a case proceeds to trial, all of the information that was designated as
12
confidential or maintained pursuant to this Protective Order becomes public and will be
13
presumptively available to all members of the public, including the press, unless
14
compelling reasons supported by specific factual findings to proceed otherwise are made
15
to the trial judge in advance of the trial. See Kamakana v. City and County of Honolulu,
16
17 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing
18 documents produced in discovery from “compelling reasons” standard when merits-
19 related documents are part of court record). Accordingly, the terms of this Protective
20
Order do not extend beyond the commencement of the trial.
21
B. Even after final disposition of this litigation, the confidentiality obligations
22
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in
23
writing or a court order otherwise directs. Final disposition shall be deemed to be the
24
25 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
26 and (2) final judgment herein after the completion and exhaustion of all appeals,
27 rehearings, remands, trials, or reviews of this Action, including the time limits for filing
28
1 VI. DESIGNATING PROTECTED MATERIAL
2 A. Exercise of Restraint and Care in Designating Material for Protection
3
1. Each Party or Non-Party that designates information or items for protection under
4
this Order must take care to limit any such designation to specific material that qualifies
5
under the appropriate standards. The Designating Party must designate for protection
6
only those parts of material, documents, items, or oral or written communications that
7
8 qualify so that other portions of the material, documents, items, or communications for
9 which protection is not warranted are not swept unjustifiably within the ambit of this
10 Order.
11
2. Mass, indiscriminate, or routinized designations are prohibited. Designations that
12
are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
13
to unnecessarily encumber the case development process or to impose unnecessary
14
expenses and burdens on other parties) may expose the Designating Party to sanctions.
15
3. If it comes to a Designating Party’s attention that information or items that it
16
17 designated for protection do not qualify for protection, that Designating Party must
18 promptly notify all other Parties that it is withdrawing the inapplicable designation.
19 B. Manner and Timing of Designations
20
1. Except as otherwise provided in this Order (see, e.g., Section B(2)(b) below), or as
21
otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
22
protection under this Order must be clearly so designated before the material is disclosed
23
or produced.
24
25 2. Designation in conformity with this Order requires the following:
26 a. For information in documentary form (e.g., paper or
27 electronic documents, but excluding transcripts of depositions or other pretrial or trial
28
1 (hereinafter “CONFIDENTIAL legend”), to each page that contains protected material. If
2 only a portion or portions of the material on a page qualifies for protection, the Producing
3
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
4
markings in the margins).
5
b. A Party or Non-Party that makes original documents available
6
for inspection need not designate them for protection until after the inspecting Party has
7
8 indicated which documents it would like copied and produced. During the inspection and
9 before the designation, all of the material made available for inspection shall be deemed
10 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
11
copied and produced, the Producing Party must determine which documents, or portions
12
thereof, qualify for protection under this Order. Then, before producing the specified
13
documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
14
that contains Protected Material. If only a portion or portions of the material on a page
15
qualifies for protection, the Producing Party also must clearly identify the protected
16
17 portion(s) (e.g., by making appropriate markings in the margins).
18 c. For testimony given in depositions, that the Designating Party
19 identify the Disclosure or Discovery Material on the record, before the close of the
20
deposition all protected testimony.
21
d. For information produced in form other than document and
22
for any other tangible items, that the Producing Party affix in a prominent place on the
23
exterior of the container or containers in which the information is stored the legend
24
25 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
26 the Producing Party, to the extent practicable, shall identify the protected portion(s).
27 C. Inadvertent Failure to Designate
28
1 information or items does not, standing alone, waive the Designating Party’s right to
2 secure protection under this Order for such material. Upon timely correction of a
3
designation, the Receiving Party must make reasonable efforts to assure that the material
4
is treated in accordance with the provisions of this Order.
5
VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6
A. Timing of Challenges
7
8 1. Any party or Non-Party may challenge a designation of
9 confidentiality at any time that is consistent with the Court’s Scheduling Order.
10 B. Meet and Confer
11
1. The Challenging Party shall initiate the dispute resolution process
12
under Local Rule 37.1 et seq.
13
C. The burden of persuasion in any such challenge proceeding shall be on the
14
Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
15
to harass or impose unnecessary expenses and burdens on other parties) may expose the
16
17 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
18 the confidentiality designation, all parties shall continue to afford the material in question
19 the level of protection to which it is entitled under the Producing Party’s designation until
20
the Court rules on the challenge.
21
VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
22
A. Basic Principles
23
1. A Receiving Party may use Protected Material that is disclosed or
24
25 produced by another Party or by a Non-Party in connection with this Action only for
26 prosecuting, defending, or attempting to settle this Action. Such Protected Material may
27 be disclosed only to the categories of persons and under the conditions described in this
28
1 provisions of Section XIV below.
2 2. Protected Material must be stored and maintained by a Receiving
3
Party at a location and in a secure manner that ensures that access is limited to the
4
persons authorized under this Order.
5
B. Disclosure of “CONFIDENTIAL” Information or Items
6
1. Unless otherwise ordered by the Court or permitted in writing by the
7
8 Designating Party, a Receiving Party may disclose any information or item designated
9 “CONFIDENTIAL” only to:
10 a. The Receiving Party’s Outside Counsel of Record in this
11
Action, as well as employees of said Outside Counsel of Record to whom it is reasonably
12
necessary to disclose the information for this Action;
13
b. The officers, directors, and employees (including In-house
14
Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
15
Action;
16
17 c. Experts (as defined in this Order) of the Receiving Party to
18 whom disclosure is reasonably necessary for this Action and who have signed the
19 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20
d. The Court and its personnel;
21
e. Court reporters and their staff;
22
f. Professional jury or trial consultants, mock jurors, and
23
Professional Vendors to whom disclosure is reasonably necessary or this Action and who
24
25 have signed the “Acknowledgment and Agreement to be Bound” attached as Exhibit A
26 hereto;
27 g. The author or recipient of a document containing the
28
1 information;
2 h. During their depositions, witnesses, and attorneys for
3
witnesses, in the Action to whom disclosure is reasonably necessary provided: (i) the
4
deposing party requests that the witness sign the “Acknowledgment and Agreement to Be
5
Bound;” and (ii) they will not be permitted to keep any confidential information unless
6
they sign the “Acknowledgment and Agreement to Be Bound,” unless otherwise agreed by
7
8 the Designating Party or ordered by the Court. Pages of transcribed deposition testimony
9 or exhibits to depositions that reveal Protected Material may be separately bound by the
10 court reporter and may not be disclosed to anyone except as permitted under this
11
Stipulated Protective Order; and
12
i. Any mediator or settlement officer, and their supporting
13
personnel, mutually agreed upon by any of the parties engaged in settlement discussions.
14
IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
15
IN OTHER LITIGATION
16
17 A. If a Party is served with a subpoena or a court order issued in other
18 litigation that compels disclosure of any information or items designated in this Action as
19 “CONFIDENTIAL,” that Party must:
20
1. Promptly notify in writing the Designating Party. Such notification
21
shall include a copy of the subpoena or court order;
22
2. Promptly notify in writing the party who caused the subpoena or
23
order to issue in the other litigation that some or all of the material covered by the
24
25 subpoena or order is subject to this Protective Order. Such notification shall include a
26 copy of this Stipulated Protective Order; and
27 3. Cooperate with respect to all reasonable procedures sought to be
28
1 B. If the Designating Party timely seeks a protective order, the Party served
2 with the subpoena or court order shall not produce any information designated in this
3
action as “CONFIDENTIAL” before a determination by the Court from which the
4
subpoena or order issued, unless the Party has obtained the Designating Party’s
5
permission. The Designating Party shall bear the burden and expense of seeking
6
protection in that court of its confidential material and nothing in these provisions should
7
8 be construed as authorizing or encouraging a Receiving Party in this Action to disobey a
9 lawful directive from another court.
10 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
11
PRODUCED IN THIS LITIGATION
12
A. The terms of this Order are applicable to information produced by a Non-
13
Party in this Action and designated as “CONFIDENTIAL.” Such information produced by
14
Non-Parties in connection with this litigation is protected by the remedies and relief
15
provided by this Order. Nothing in these provisions should be construed as prohibiting a
16
17 Non-Party from seeking additional protections.
18 B. In the event that a Party is required, by a valid discovery request, to produce
19 a Non-Party’s confidential information in its possession, and the Party is subject to an
20
agreement with the Non-Party not to produce the Non-Party’s confidential information,
21
then the Party shall:
22
1. Promptly notify in writing the Requesting Party and the Non-Party
23
that some or all of the information requested is subject to a confidentiality agreement
24
25 with a Non-Party;
26 2. Promptly provide the Non-Party with a copy of the Stipulated
27 Protective Order in this Action, the relevant discovery request(s), and a reasonably
28
1 3. Make the information requested available for inspection by the Non-
2 Party, if requested.
3
C. If the Non-Party fails to seek a protective order from this court within 14
4
days of receiving the notice and accompanying information, the Receiving Party may
5
produce the Non-Party’s confidential information responsive to the discovery request. If
6
the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
7
8 information in its possession or control that is subject to the confidentiality agreement
9 with the Non-Party before a determination by the court. Absent a court order to the
10 contrary, the Non-Party shall bear the burden and expense of seeking protection in this
11
court of its Protected Material.
12
XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
13
A. If a Receiving Party learns that, by inadvertence or otherwise, it has
14
disclosed Protected Material to any person or in any circumstance not authorized under
15
this Stipulated Protective Order, the Receiving Party must immediately (1) notify in
16
17 writing the Designating Party of the unauthorized disclosures, (2) use its best efforts to
18 retrieve all unauthorized copies of the Protected Material, (3) inform the person or
19 persons to whom unauthorized disclosures were made of all the terms of this Order, and
20
(4) request such person or persons to execute the “Acknowledgment and Agreement to be
21
Bound” that is attached hereto as Exhibit A.
22
XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
23
PROTECTED MATERIAL
24
25 A. When a Producing Party gives notice to Receiving Parties that certain
26 inadvertently produced material is subject to a claim of privilege or other protection, the
27 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
28
1 established in an e-discovery order that provides for production without prior privilege
2 review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach
3
an agreement on the effect of disclosure of a communication or information covered by
4
the attorney-client privilege or work product protection, the parties may incorporate their
5
agreement in the Stipulated Protective Order submitted to the Court.
6
XIII. MISCELLANEOUS
7
8 A. Right to Further Relief
9 1. Nothing in this Order abridges the right of any person to seek its
10 modification by the Court in the future.
11
B. Right to Assert Other Objections
12
1. By stipulating to the entry of this Protective Order, no Party waives
13
any right it otherwise would have to object to disclosing or producing any information or
14
item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party
15
waives any right to object on any ground to use in evidence of any of the material covered
16
17 by this Protective Order.
18 C. Filing Protected Material
19 1. A Party that seeks to file under seal any Protected Material must
20
comply with Civil Local Rule 79-5. Protected Material may only be filed under seal
21
pursuant to a court order authorizing the sealing of the specific Protected Material at
22
issue. If a Party's request to file Protected Material under seal is denied by the Court,
23
then the Receiving Party may file the information in the public record unless otherwise
24
25 instructed by the Court.
26 XIV. FINAL DISPOSITION
27 A. After the final disposition of this Action, as defined in Section V, within
28
1 return all Protected Material to the Producing Party or destroy such material. As used in
2 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
3
summaries, and any other format reproducing or capturing any of the Protected Material.
4
Whether the Protected Material is returned or destroyed, the Receiving Party must
5
submit a written certification to the Producing Party (and, if not the same person or
6
entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,
7
8 where appropriate) all the Protected Material that was returned or destroyed and (2)
9 affirms that the Receiving Party has not retained any copies, abstracts, compilations,
10 summaries or any other format reproducing or capturing any of the Protected Material.
11
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
12
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
13
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
14
consultant and expert work product, even if such materials contain Protected Material.
15
Any such archival copies that contain or constitute Protected Material remain subject to
16
17 this Protective Order as set forth in Section V.
18 B. Any violation of this Order may be punished by any and all appropriate
19 measures including, without limitation, contempt proceedings and/or monetary
20
sanctions.
21
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
22
DATED: August 27, 2020 KELLEY DRYE & WARREN LLP
23
Tahir L. Boykins
24
25 By: /s/ Tahir L. Boykins
Tahir L. Boykins
26 Attorneys for Defendants
Laboratory Corporation of America
27
Holdings
28
1
DATED: August 27, 2020 By: /s/ Alison M. Bernal
2
Alison M. Bernal (SBN 264629)
3 alison@nshmlaw.com
Jonathan D. Miller (SBN 220848)
4
jonathan@nshmlaw.com
5 NYE, STIRLING, HALE
& MILLER, LLP
6
33 West Mission Street, Suite 201
7 Santa Barbara, CA 93101
Telephone: (805) 963-2345
8
Facsimile: (805) 284-9590
9
Benjamin J. Sweet
10
(Admitted Pro Hac Vice)
11 ben@nshmlaw.com
NYE, STIRLING, HALE
12
& MILLER, LLP
13 1145 Bower Hill Road, Suite 104
Pittsburgh, PA 15243
14
Telephone: (412) 857-5350
15
Matther K. Handley
16
(Pro Hac Vice Forthcoming)
17 mhandley@hfajustice.com
HANDLEY FARAH &
18
ANDERSON PLLC
19 777 6th St NW
20 Washington, DC 20001
Telephone: (202) 559-2411
21 Facsimile: (844) 300-1952
22 Attorneys for Plaintiffs Luke Davis and
Julian Vargas
23
24 Local Rule 5-4.3.4 Certification: I hereby attest that all other signatories
listed, on whose behalf this filing is submitted, concur in the filing’s content and
25 have authorized this filing.
26
27 By: /s/ Tahir L. Boykins
28 Tahir L. Boykins
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
5 Dated: August 28, 2020 Fawn Possnson
4 NORABLE KAREN I. STEVENSON
; United States Magistrate Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1< CACE NDA 9-90 _CU_NNe02_EMIOKe

1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, [print or type full name], of
5 [print or type full address], declare under penalty of perjury that I have
6 read in its entirety and understand the Stipulated Protective Order that was issued by the
7
United States District Court for the Central District of California on [DATE] in the case of
8
[insert formal name of the case and the number and
9
initials assigned to it by the Court]. I agree to comply with and to be bound by all the
10
terms of this Stipulated Protective Order and I understand and acknowledge that failure
11
to so comply could expose me to sanctions and punishment in the nature of contempt. I
12
13 solemnly promise that I will not disclose in any manner any information or item that is
14 subject to this Stipulated Protective Order to any person or entity except in strict
15 compliance with the provisions of this Order.
16
I further agree to submit to the jurisdiction of the United States District Court for
17
the Central District of California for the purpose of enforcing the terms of this Stipulated
18
Protective Order, even if such enforcement proceedings occur after termination of this
19
action. I hereby appoint [print or type full name] of
20
21 [print or type full address and telephone number] as my
22 California agent for service of process in connection with this action or any proceedings
23 related to enforcement of this Stipulated Protective Order.
24
Date:
25
City and State where sworn and signed:
26
Printed Name:
27
Signature:
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038878. Public record. Not legal advice.