Torres v. La Favorita Broadcasting, Inc. ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 RICARDO TORRES, Case No. 1:17-cv-00888-SAB 11 Plaintiff, ORDER RE STIPULATED PROTECTIVE 12 ORDER v. 13 (ECF No. 68) LA FAVORITA BROADCASTING, INC., et 14 al., 15 Defendants. 16 17 STIPULATED PROTECTIVE ORDER 18 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff RICARDO 19 TORRES, et al. (“Plaintiff” or “Torres”) and Defendants NELSON F. GOMEZ and DEBBIE L. 20 GOMEZ (collectively “Defendants”), through counsel undersigned, jointly submit this Stipulated 21 Protective Order to govern the handling of information and materials produced in the course of 22 discovery or filed with the Court in advance of trial in this action. 23 GOOD CAUSE STATEMENT PURSUANT TO L.R. 141.1(c) 24 Disclosure and discovery activity in this action are likely to involve production of 25 confidential, proprietary, or private information for which special protection from public 26 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 27 Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 1 protections on all disclosures or responses to discovery, and that the protection it affords from 2 public disclosure and use extends only to the limited information or items that are entitled to 3 confidential treatment under applicable legal principles. 4 Statement Under L.R. 141.1(c)(1): Examples of confidential information that the 5 parties may seek to protect from unrestricted or unprotected disclosure include: 6 a) Information that is the subject of a non-disclosure or confidentiality agreement or 7 obligation; 8 b) The names of a party’s vendors, distributors, or customers (or other information 9 tending to reveal their identities); 10 c) Agreements with third-parties; 11 d) Information related to budgets, sales, profits, costs, margins, product pricing, or 12 other internal financial/accounting information, including non-public information related 13 to financial condition or performance and income or other non-public tax information; 14 e) Information showing the price or other information related to the terms of sale or 15 purchase of products and materials relevant to this case; 16 f) Information related to internal operations, including personnel information; 17 g) Information related to past, current, and future market analyses and business and 18 marketing development, including plans, strategies, forecasts and competition; 19 h) internal financial documents of business entities and operation including financial 20 statement, ledgers, accounting books and records, bank statements, and tax returns; 21 i) personal financial records of individual parties including without limitation bank 22 statements, financial transactions, checks, deposit and withdrawal receipts, and tax 23 returns; 24 h) Trade secrets (as defined by the jurisdiction in which the information is located). 25 Statement Under L.R. 141.1(c)(2): Generally speaking, information and documents 26 shall only be designated under this protective order because the Designating Party believes the 27 information or documents are proprietary, protected by financial privacy, confidential, and/or 1 unprotected disclosure of such confidential, technical, commercial, or personal information 2 would result in prejudice or harm to the Producing Party by revealing the Producing Party’s 3 competitive confidential information. Such information will have been developed at the expense 4 of the Producing Party and represent valuable tangible and intangible assets of that party. 5 Additionally, privacy interests must be safeguarded. Accordingly, the parties respectfully submit 6 that there is good cause for the entry of this Protective Order. 7 Statement Under L.R. 141.1(c)(3): The parties submit that protecting the confidential 8 nature of information in this way will be most efficient for the parties and the Court. That is 9 because the liability issues in this internal business dispute will involve the mutual exchange of 10 documents and other information that each party may consider to be its proprietary, private, 11 confidential, and/or trade secret information. Remedies issues in this case are likely to involve 12 the mutual exchange of business-sensitive financial, pricing, and related information. The 13 parties have met and conferred on this issue and agree that any private agreement between the 14 parties to safeguard this information will only need to be replicated through orders of this Court 15 at the time of filing dispositive or non-dispositive motions. 16 PROTECTIVE ORDER 17 1. DEFINITIONS. 18 (a) The term “Challenging Party” shall mean a Party or Non-Party that challenges the 19 designation of information or items under this Order. 20 (b) The term “Confidential” shall mean information (regardless of how it is 21 generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule 22 of Civil Procedure 26(c). 23 (c) The term “Counsel” shall mean the attorneys of record for any party in this action, 24 their associates and their staff. If any party seeks to add counsel of record or substitute counsel 25 of record, then no “Confidential” Documents and information shall be discussed to such 26 additional or substitute counsel of record until they have agreed to this stipulation by executing 27 the attached Exhibit A. 1 information or items that it produces in disclosures or in responses to discovery as 2 “Confidential.” 3 (e) The term “Documents” shall have the same meaning as the terms “documents and 4 electronically stored information” as used in Rule 34 of the Federal Rules of Civil Procedure. 5 (f) The term “Expert” shall mean a person with specialized knowledge or experience 6 in a matter pertinent to this litigation who has been retained by a Party to serve as an expert 7 witness or as a consultant in this litigation and who, at the time of retention, is not anticipated to 8 become an officer, director, or employee of a Party. Nothing in this Protective Order purports to 9 alter in any way the requirements for offering testimony under Fed. R. Evid. 703, or to define the 10 term “expert” for purposes other than those addressed in this Protective Order. 11 (g) The term “House Counsel” shall mean attorneys who are employees of a party to 12 this action. House Counsel does not include outside counsel of record, or any other outside 13 counsel. 14 (h) The term “Non-Party” shall mean any natural person, partnership, corporation, 15 association, or other legal entity not named as a Party to this action. 16 (i) The term “Party” shall mean any party to this action, including all of its officers, 17 directors, employees, and consultants retained in the ordinary course of business. 18 (j) The term “Producing Party” shall mean a Party or Non-Party that produces 19 information or other discovery material in this action. 20 (k) The term “Professional Vendors” shall mean persons or entities that provide 21 litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) and their 23 employees and subcontractors. 24 (l) The term “Protected Material” shall mean any information or other discovery 25 material that is designated as “Confidential.” 26 (m) The term “Receiving Party” shall mean a Party that receives information or other 27 discovery material from a Producing Party. 1 (a) Exercise of Restraint and Care in Designating Material for Protection. Each Party 2 or Non-Party that designates information or items for protection under this Order must take care 3 to limit any such designations. The Designating Party must designate for protection only those 4 parts of material, documents, items, or oral or written communications that qualify under the 5 appropriate standards so that other portions of the material, documents, items, or 6 communications for which protection is not warranted are not swept unjustifiably within the 7 ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. 8 Designations that are shown to be clearly unjustified or that have been made for an improper 9 purpose (e.g., to unnecessarily encumber or retard the case development process or to impose 10 unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. 11 If it comes to a Designating Party’s attention that information or items that it designated for 12 protection do not qualify for protection, that Designating Party must promptly notify all other 13 Parties that it is withdrawing the mistaken designation. 14 (b) Manner and Timing of Designations. Except as otherwise provided in this Order 15 or as otherwise stipulated or ordered, discovery material and information that qualify for 16 protection under this Order must be clearly so designated before the material is disclosed or 17 produced. The Designating Party must use reasonable efforts to ensure that the applicable 18 legend appears on each page of each file produced, as permitted by the particular format of a 19 given Document. 20 (c) Materials Subject to Designation. Each party to this litigation may designate any 21 Document, thing, interrogatory answer, admission, deposition testimony, and portions of such 22 materials, or other information which it has provided or which a third-party has provided as 23 “Confidential” in accordance with this Protective Order. The party designating such information 24 as “Confidential” shall be known as the “Designating Party” and the designation shall be set out 25 thereon. In designating Documents or information as “Confidential,” the Designating Party’s 26 counsel shall make a good faith determination, before applying the designation, that the 27 information warrants protection under Rule 26(c) of the Federal Rules of Civil Procedure. 1 to produce original Documents and things for inspection rather than produce copies of 2 Documents, no marking need be made by the Producing Party in advance of the initial 3 inspection. Thereafter, upon selection of specified Documents for copying by the inspecting 4 party, the Producing Party shall mark the copies of such Documents as may contain protected 5 subject matter with the appropriate confidentiality marking at the time the copies are produced to 6 the inspecting party. Said marking shall not delay the production of the copies. Information 7 obtained by counsel from initial review of Documents, whether in written form or not, shall be 8 maintained as “Confidential” unless such information is produced without a designation of 9 confidentiality, or as otherwise designated by the Producing Party. 10 (e) Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the Designating Party’s 12 right to secure protection under this Order for such material. Upon timely correction of a 13 designation, the Receiving Party must make reasonable efforts to assure that the material is 14 treated in accordance with the provisions of this Order. 15 3. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 16 (a) Timing of Challenges. Any Party or Non-Party may challenge a designation of 17 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 18 designation is necessary to avoid foreseeable and substantial unfairness, unnecessary economic 19 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 20 challenge a confidentiality designation by electing not to mount a challenge promptly after the 21 original designation is disclosed. 22 (b) Meet and Confer. The Challenging Party shall initiate the dispute resolution 23 process by providing written notice of each designation it is challenging and describing the basis 24 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 25 notice must recite that the challenge to confidentiality is being made in accordance with this 26 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 27 good faith and must begin the process by conferring directly (in voice-to-voice dialogue; other 1 notice. In conferring, the Challenging Party must explain the basis for its belief that the 2 confidentiality designation was not proper and must give the Designating Party an opportunity to 3 review the designated material, to reconsider the circumstances, and, if no change in designation 4 is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to 5 the next stage of the challenge process only if it has engaged in this meet and confer process first 6 or establishes that the Designating Party is unwilling to participate in the meet and confer 7 process in a timely manner. 8 (c) Judicial Intervention. If the Parties cannot resolve a challenge without court 9 intervention, the Designating Party shall file and serve a motion to retain confidentiality within 10 twenty-one (21) days of the initial notice of challenge or within fourteen (14) days of the parties 11 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 12 Any motion seeking relief from the Court must comply with Local Rule 251, including the Joint 13 Statement requirement, and Hon. Stanley A. Boone’s Standing Order ¶ 6. Each such motion 14 must be accompanied by a competent declaration affirming that the movant has complied with 15 the meet and confer requirements imposed in the preceding paragraph. Failure by the 16 Designating Party to make such a motion, including the required declaration within fourteen (14) 17 days (or seven (7) days, if applicable), shall automatically waive the confidentiality designation 18 for each challenged designation. In addition, the Challenging Party may file a motion 19 challenging a confidentiality designation at any time if there is good cause for doing so, 20 including a challenge to the designation of a deposition transcript or any portions thereof. Any 21 motion brought pursuant to this provision must be accompanied by a competent declaration 22 affirming that the movant has complied with the meet and confer requirements imposed by the 23 preceding paragraph. 24 The burden of persuasion in any such challenge proceeding shall be on the Designating 25 Party. All parties shall continue to afford the material in question the level of protection to 26 which it is entitled under the Producing Party’s designation until the Court rules on the 27 challenge. 1 Informal Telephonic Conference procedure set forth in Hon. Boone’s Standing Order ¶ 7. 2 4. ACCESS TO “CONFIDENTIAL” MATERIALS. 3 (a) A Receiving Party may only use “Confidential” Materials that are disclosed or 4 produced by another Party or by a Non-Party in connection with prosecuting, defending, or 5 attempting to settle this litigation. Such “Confidential” Material may be disclosed only to the 6 categories of person and under the conditions described in this Order. When the litigation has 7 been terminated, a Receiving Party must comply with the provisions for Final Disposition of 8 Protected Material set forth below. 9 (b) Unless otherwise ordered by the Court or permitted in writing by the Designating 10 Party, a Receiving Party may only disclose any information or item designated as “Confidential” 11 to: 12 (i) the Receiving Party’s outside counsel of record, as well as employees of 13 said outside counsel of record to whom it is reasonably necessary to disclose this information; 14 (ii) the officers, directors, and employees (including House Counsel) of the 15 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 16 signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); 17 (iii) Experts (as defined in this Order) of the Receiving Party and employees of 18 said Experts to whom it is reasonably necessary to disclose this information, and who have 19 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (iv) the court and its personnel; 21 (v) court reporters and their staff, professional jury or trial consultants, mock 22 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 23 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (vi) during their depositions, witnesses in the action to whom disclosure is 25 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 26 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 27 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 1 this Stipulated Protective Order. 2 (vii) the author or recipient of a document containing the information or a 3 custodian or other person who otherwise possessed or knew the information. 4 5. STORAGE OF PROTECTED INFORMATION BY RECEIVING PARTY. 5 The recipient of any Confidential materials provided under this Protective Order 6 (including copies or excerpts made thereof) shall maintain such information in a secure and safe 7 area, and shall exercise reasonable and proper care with respect to the storage, custody, use, 8 and/or dissemination of such information. 9 6. TREATMENT OF PROTECTED MATERIAL AT DEPOSITIONS IN THIS 10 LITIGATION. 11 (a) Deposition of the Authors and Recipients of Protected Material. With respect to 12 Documents designated as including “Confidential,” any person indicated on the face of the 13 Document to be its originator, author, or recipient may be shown the Documents. Additionally, 14 any Document designated as including “Confidential” may be shown to any employee of the 15 Designating Party and/or the party that produced in this litigation the Document so designated 16 during the deposition of that employee if it is reasonably probable that the employee would have 17 access to or knowledge of the information contained in that Document. 18 (b) Exclusion of Certain Persons From Protected Deposition Testimony. Any Party 19 shall have the right to exclude from attendance at a deposition, during such time as the 20 “Confidential” Documents or information is to be disclosed, every individual not entitled under 21 the Protective Order to receipt of the information, excluding the deponent and the court reporter 22 and/or videographer. The Parties shall exercise restraint if and when excluding persons from a 23 deposition pursuant to this paragraph. 24 (c) Procedure for Designating Transcript Sections as Protected Material. Whenever a 25 deposition taken on behalf of any party involves a disclosure of “Confidential” Documents or 26 information of any party, said deposition or portions thereof shall be designated as containing 27 “Confidential” subject to the provisions of this Protective Order at the time the deposition is 1 deposition transcript within which to designate, in writing, those portions of the transcript it 2 wishes to remain designated as “Confidential,” and the right to make such designation shall be 3 waived unless made within the ten (10) day period. During such ten (10) period, the entirety of 4 the transcript shall be deemed designated ”Confidential” to preserve the right of any Party to 5 make a final designation of “Confidential” during that ten (10) day period. 6 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 7 LITIGATION. 8 If a Party is served with a subpoena or a court order issues in another litigation that 9 compels disclosure of any information or items designated in this action as “Confidential,” that 10 Party must: 11 (a) Promptly notify the Designating Party in writing. Such notification shall include 12 a copy of the subpoena or court order; 13 (b) Promptly notify, in writing, the party who caused the subpoena or order to issue in 14 the other litigation that some or all of the material covered by the subpoena or order is subject to 15 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 16 and 17 (c) Cooperate with respect to all reasonable procedures sought to be pursued by the 18 Designating Party whose Protected Material may be affected. 19 If the Designating Party timely seeks a protective order, the Party served with the 20 subpoena or court order shall not produce any information designated in this action as 21 “Confidential” before a determination by the court from which the subpoena or order issued, 22 unless the Party has obtained the Designating Party’s permission. The Designating Party shall 23 bear the burden and expense of seeking protection in that court of its confidential material ― and 24 nothing in these provisions should be construed as authorizing or encouraging a Receiving Party 25 in this action to disobey a lawful directive from another court. 26 8. PROTECTED MATERIAL OF A NON-PARTY SOUGHT TO BE PRODUCED IN 27 THIS LITIGATION. 1 a Non-Party in this action and designated as “Confidential.” Such information produced by Non- 2 Parties in connection with this litigation is protected by the remedies and relief provided by this 3 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 4 additional protections. 5 (b) Notice Procedure. In the event that a Party is required, by a valid discovery 6 request, to produce a Non-Party’s confidential information in its possession, and the Party is 7 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential 8 information, then the Party shall: 9 (i) Promptly notify, in writing, the Requesting Party and the Non-Party that 10 some or all of the information requested is subject to a confidentiality agreement with a Non- 11 Party; 12 (ii) Promptly provide the Non-Party with a copy of the Stipulated Protective 13 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 14 the information requested; and 15 (iii) Make the information requested available for inspection by the Non-Party. 16 (c) Disclosure and Remedy. If the Non-Party fails to object or seek a protective order 17 from this Court within fourteen (14) days of receiving the above notice and accompanying 18 information, the Receiving Party may produce the Non-Party’s confidential information 19 responsive to the discovery request. If the Non-Party timely seeks a protective order, the 20 Receiving Party shall not produce any information in its possession or control that is subject to 21 the confidentiality agreement with the Non-Party before a determination by the Court. Absent a 22 court order to the contrary, the Non-Party shall bear the burden and expense of seeking 23 protection in this Court of its Protected Material. 24 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL. 25 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 26 Material to any person or in any circumstance not authorized under this Stipulated Protective 27 Order, the Receiving Party must immediately (1) notify in writing the Designating Party of the 1 Protected Material, (3) inform the person or persons to whom unauthorized disclosures were 2 made of all the terms of this Order, and (4) request such person or persons to execute the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 4 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 5 MATERIAL. 6 When a Producing Party gives notice to Receiving Parties that certain inadvertently 7 produced material is subject to a claim of privilege or other protection, the obligations of the 8 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 9 provision is not intended to modify whatever procedure may be established in an e-discovery 10 order that provides for production without prior privilege review. Pursuant to Federal Rule of 11 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 12 communication or information covered by the attorney-client privilege or work product 13 protection, the parties may incorporate their agreement in the stipulated protective order 14 submitted to the court. 15 11. FINAL DISPOSITION. 16 (a) Upon Termination of this Action. Within sixty (60) days after a final disposition 17 of the action, which shall include entry of final judgment and the exhaustion of all rights of 18 appeal, or a dismissal of the action, a Receiving Party shall either return to the Producing Party 19 or destroy all Documents and things or transcripts of depositions, together with all copies 20 thereof, which have been designated “Confidential.” Notwithstanding this provision, Counsel 21 are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and 22 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 23 reports, attorney work product, and consultant and expert work product, even if such materials 24 contain Protected Material. Any such archival copies that contain or constitute Protected 25 Material remain subject to this Protective Order. 26 12. MISCELLANEOUS. 27 (a) Right to Seek Modification. Nothing in this Order abridges the right of any 1 (b) Right to Assert Other Objections. By stipulating to entry of this Protective Order, 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information on any ground not addressed in this Stipulated Protective Order. Similarly, no Party 4 waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 6 (c) Filings of Protected Material. A Party that seeks to file under seal any Protected 7 Material must fully comply with Local Rule 141. 8 9 STIPULATION 10 IT IS HEREBY STIPULATED by and among the parties, through their undersigned 11 counsel, that the foregoing Stipulated Protective Order may be entered in this action subject to 12 the consent of this Court. 13 ABIR COHEN TREYZON SALO, LLP 14 Dated: December 3, 2019 15 16 By: /s/ David S. Bederman 17 Boris Treyzon 18 David S. Bederman Attorneys for Plaintiff 19 20 Dated: December 3, 2019 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 21 22 23 By: /s/ Timothy J. Buchanan Timothy J. Buchanan 24 Todd A. Wynkoop Attorneys for Defendants 25 /// 26 /// 27 /// 1 EXHIBIT A 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 3 I, __________________________________ [type or print full name] of 4 ___________________________________________________________________ [print or 5 type full address], hereby declare under penalty of perjury that I have read and am fully familiar 6 with the terms of the Protective Order entered in RICARDO TORRES, et al. v. LA FAVORITA 7 BROADCASTNG, INC., et al., Case No. 1:17-cv-00888-SAB, and hereby agree to comply with 8 and be bound by the terms and conditions of said Order unless and until modified by further 9 Order of the Court. 10 I acknowledge that I am about to receive Confidential information in said action, and 11 hereby certify my understanding that such information is being provided to me pursuant to the 12 terms and restrictions of the Protective Order. I understand that such information, and any 13 copies I make of any material containing “Confidential” information, or any notes or other 14 records that may be made regarding any such information, shall not be disclosed to others, 15 except other persons that are identified in or have agreed to comply with and be bound by the 16 terms of the Protective Order. I hereby consent to the jurisdiction of said Court for purposes of 17 enforcing this Order, even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint _________________________________________[print or type full 19 name] of 20 ______________________________________________________________________________ 21 ______________________________________________________________________________ 22 ______________ [print or type full address, telephone number, and email address] as my 23 California agent for service of process in connection with this action or any proceedings related 24 to enforcement of this Stipulated Protective Order. 25 Date: ______________________________________ 26 City and State where sworn and signed: _________________________________ 27 Printed Name: _______________________________ 1 ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal will require a written request which complies with Local Rule 141; and 7 3. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion. Pintos v. Pacific 10 Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 11 4. If a party’s request to file Protected Material under seal is denied by the Court, 12 then the previously filed material shall be immediately accepted by the court and 13 become information in the public record and the information will be deemed filed 14 as of the date that the request to file the Protected Information under seal was 15 made. 16 17 IT IS SO ORDERED. OF. nf ee 18 | Dated: _ December 3, 2019 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28