Pringle v. Western Dental Services, Inc. ( 2020 )

1 Wyeth E. Burrows (State Bar No. 203851) Wburrows@wshblaw.com 2 Zhasmina Y. Kolarova (State Bar No. 328751) zkolarova@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP 501 West Broadway, Suite 1200 4 San Diego, California 92101 Wburrows@wshblaw.com 5 Phone: 619-849-4900 ♦ Fax: 619-849-4950 6 Attorneys for Defendant, WESTERN DENTAL SERVICES, INC. 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION 10 11 KIMBERLEE PRINGLE, No. 2:19-cv-02190-MCE-DB 12 Plaintiff, STIPULATED PROTECTIVE ORDER 13 v. 14 WESTERN DENTAL SERVICES, INC., 15 Defendant. 16 17 18 1. In this Protective Order, the words set forth below shall have the 19 following meanings: 20 a. “Proceeding” means the above-entitled proceeding, Kimberlee Pringle 21 v. Western Dental Services, Inc., U.S.D.C. Eastern District of California, 22 Sacramento Division, Case No. 2:19-cv-02190-MCE-DB. 23 b. “Court” means the judge to which this Proceeding may be assigned, 24 including Court staff participating in such proceedings. 25 c. “Confidential” means any information which is in the possession of a 26 Designating Party who believes in good faith that such information is entitled to 27 confidential treatment under applicable law. 1 d. “Confidential Materials” means any Documents, Testimony or 2 Information as defined below designated as “Confidential” pursuant to the 3 provisions of this Protective Order. 4 e. “Designating Party” means the Party that designates Materials as 5 “Confidential.” 6 f. “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, 7 give, or make available Materials, or any part thereof, or any information contained 8 therein. 9 g. “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as 10 those terms are defined by Federal Rules of Evidence Rule 1001, which have been 11 produced in discovery in this Proceeding by any person, and (ii) any copies, 12 reproductions, or summaries of all or any part of the foregoing. 13 h. “Information” means the content of Documents or Testimony. 14 i. “Testimony” means all depositions, declarations or other testimony 15 taken or used in this Proceeding. 16 2. The Designating Party shall have the right to designate as 17 “Confidential” any Documents, Testimony or Information that the Designating Party 18 in good faith believes to contain non-public information that is entitled to 19 confidential treatment under applicable law. Plaintiff, Kimberlee Pringle, has 20 designated all AT&T cell phone records since May 31, 2018 until present, to be 21 deemed "Confidential" because the records will disclose phone numbers of non- 22 parties to this action. 23 3. The entry of this Protective Order does not alter, waive, modify, or 24 abridge any right, privilege or protection otherwise available to any Party with 25 respect to the discovery of matters, including but not limited to any Party’s right to 26 assert the attorney-client privilege, the attorney work product doctrine, or other 27 privileges, or any Party’s right to contest any such assertion. 1 4. Any Documents, Testimony or Information to be designated as 2 “Confidential” must be clearly so designated before the Document, Testimony or 3 Information is Disclosed or produced. The parties may agree that the case name and 4 number are to be part of the “Confidential” designation. The “Confidential” 5 designation should not obscure or interfere with the legibility of the designated 6 Information. 7 a. For Documents (apart from transcripts of depositions or other pretrial 8 or trial proceedings), the Designating Party must affix the legend “Confidential” on 9 each page of any Document containing such designated Confidential Material. 10 b. For Testimony given in depositions the Designating Party may either: 11 i. identify on the record, before the close of the deposition, all 12 “Confidential” Testimony, by specifying all portions of the Testimony that qualify 13 as “Confidential;” or 14 ii. designate the entirety of the Testimony at the deposition as 15 “Confidential” (before the deposition is concluded) with the right to identify more 16 specific portions of the Testimony as to which protection is sought within 30 days 17 following receipt of the deposition transcript. In circumstances where portions of the 18 deposition Testimony are designated for protection, the transcript pages containing 19 “Confidential” Information may be separately bound by the court reporter, who 20 must affix to the top of each page the legend “Confidential,” as instructed by the 21 Designating Party. 22 c. For Information produced in some form other than Documents, and for 23 any other tangible items, including, without limitation, compact discs or DVDs, the 24 Designating Party must affix in a prominent place on the exterior of the container or 25 containers in which the Information or item is stored the legend “Confidential.” If 26 only portions of the Information or item warrant protection, the Designating Party, 27 to the extent practicable, shall identify the “Confidential” portions. 1 5. The inadvertent production by any of the undersigned Parties or non- 2 Parties to the Proceedings of any Document, Testimony or Information during 3 discovery in this Proceeding without a “Confidential” designation, shall be without 4 prejudice to any claim that such item is “Confidential" and such Party shall not be 5 held to have waived any rights by such inadvertent production. In the event that any 6 Document, Testimony or Information that is subject to a "Confidential" designation 7 is inadvertently produced without such designation, the Party that inadvertently 8 produced the document shall give written notice of such inadvertent production 9 within twenty (20) days of discovery of the inadvertent production, together with a 10 further copy of the subject Document, Testimony or Information designated as 11 "Confidential" (the "Inadvertent Production Notice"). Upon receipt of such 12 Inadvertent Production Notice, the Party that received the inadvertently produced 13 Document, Testimony or Information shall promptly destroy the inadvertently 14 produced Document, Testimony or Information and all copies thereof, or, at the 15 expense of the producing Party, return such together with all copies of such 16 Document, Testimony or Information to counsel for the producing Party and shall 17 retain only the "Confidential" designated Materials. Should the receiving Party 18 choose to destroy such inadvertently produced Document, Testimony or 19 Information, the receiving Party shall notify the producing Party in writing of such 20 destruction within ten (10) days of receipt of written notice of the inadvertent 21 production. This provision is not intended to apply to any inadvertent production of 22 any Information protected by attorney-client or work product privileges. In the event 23 that this provision conflicts with any applicable law regarding waiver of 24 confidentiality through the inadvertent production of Documents, Testimony or 25 Information, such law shall govern. 26 6. In the event that counsel for a Party receiving Documents, Testimony 27 or Information in discovery designated as "Confidential" objects to such designation 1 Designating Party, in writing, of such objections, the specific Documents, 2 Testimony or Information to which each objection pertains, and the specific reasons 3 and support for such objections (the "Designation Objections"). Counsel for the 4 Designating Party shall have thirty (30) days from receipt of the written Designation 5 Objections to either (a) agree in writing to de-designate Documents, Testimony or 6 Information pursuant to any or all of the Designation Objections and/or (b) file a 7 motion with the Court seeking to uphold any or all designations on Documents, 8 Testimony or Information addressed by the Designation Objections (the 9 “Designation Motion”). Pending a resolution of the Designation Motion by the 10 Court, any and all existing designations on the Documents, Testimony or 11 Information at issue in such Motion shall remain in place. The Designating Party 12 shall have the burden on any Designation Motion of establishing the applicability of 13 its “Confidential” designation. In the event that the Designation Objections are 14 neither timely agreed to nor timely addressed in the Designation Motion, then such 15 Documents, Testimony or Information shall be de-designated in accordance with the 16 Designation Objection applicable to such material. 17 7. Access to and/or Disclosure of Confidential Materials designated as 18 “Confidential” shall be permitted only to the following persons: 19 a. The Court and any Party to the Action; 20 b. (1) Attorneys of record in the Proceedings and their affiliated 21 attorneys, paralegals, clerical and secretarial staff employed by such 22 attorneys who are actively involved in the Proceedings and are not 23 employees of any Party. (2) In-house counsel to the undersigned Parties 24 and the paralegal, clerical and secretarial staff employed by such 25 counsel. Provided, however, that each non-lawyer given access to 26 Confidential Materials shall be advised that such Materials are being 27 Disclosed pursuant to, and are subject to, the terms of this Stipulation 1 pursuant to its terms; 2 c. Those officers, directors, partners, members, employees and 3 agents of all non-designating Parties that counsel for such Parties deems 4 necessary to aid counsel in the prosecution and defense of this 5 Proceeding; provided, however, that prior to the Disclosure of 6 Confidential Materials to any such officer, director, partner, member, 7 employee or agent, counsel for the Party making the Disclosure shall 8 deliver a copy of this Stipulation and Protective Order to such person, 9 shall explain that such person is bound to follow the terms of such Order, 10 and shall secure the signature of such person on a statement in the form 11 attached hereto as Exhibit A; 12 d. Court reporters in this Proceeding (whether at depositions, 13 hearings, or any other proceeding); 14 e. Any deposition, trial or hearing witness in the Proceeding who 15 previously has had access to the Confidential Materials, or who is 16 currently or was previously an officer, director, partner, member, 17 employee or agent of an entity that has had access to the Confidential 18 Materials; 19 f. Any deposition or non-trial hearing witness in the Proceeding who 20 previously did not have access to the Confidential Materials; provided, 21 however, that each such witness given access to Confidential Materials 22 shall be advised that such Materials are being Disclosed pursuant to, and 23 are subject to, the terms of this Stipulation and Protective Order and that 24 they may not be Disclosed other than pursuant to its terms; 25 g. Outside experts or expert consultants consulted by the 26 undersigned Parties or their counsel in connection with the Proceeding, 27 whether or not retained to testify at any oral hearing; provided, however, 1 or expert consultant, counsel for the Party making the Disclosure shall 2 deliver a copy of this Stipulation and Protective Order to such person, 3 shall explain its terms to such person, and shall secure the signature of 4 such person on a statement in the form attached hereto as Exhibit A. It 5 shall be the obligation of counsel, upon learning of any breach or 6 threatened breach of this Stipulation and Protective Order by any such 7 expert or expert consultant, to promptly notify counsel for the 8 Designating Party of such breach or threatened breach; and 9 h. Any other person that the Designating Party agrees to in writing. 10 8. Confidential Materials shall be used by the persons receiving them only 11 for the purposes of preparing for, conducting, participating in the conduct of, and/or 12 prosecuting and/or defending the Proceeding, and not for any business or other 13 purpose whatsoever. 14 9. Any Party to the Proceeding (or other person subject to the terms of 15 this Stipulation and Protective Order) may ask the Court, after appropriate notice 16 to the other Parties to the Proceeding, to modify or grant relief from any 17 provision of this Stipulation and Protective Order. 18 10. Entering into, agreeing to, and/or complying with the terms of this 19 Stipulation and Protective Order shall not: 20 a. Operate as an admission by any person that any particular 21 Document, Testimony or Information marked “Confidential” contains or 22 reflects trade secrets, proprietary, confidential or competitively sensitive 23 business, commercial, financial or personal information; or 24 b. Prejudice in any way the right of any Party (or any other person 25 subject to the terms of this Stipulation and Protective Order): 26 i. To seek a determination by the Court of whether any 27 particular Confidential Material should be subject to protection as 1 Order; or 2 ii. To seek relief from the Court on appropriate notice to all 3 other Parties to the Proceeding from any provision(s) of this 4 Stipulation and Protective Order, either generally or as to any 5 particular Document, Material or Information. 6 11. Any Party to the Proceeding who has not executed this Stipulation and 7 Protective Order as of the time it is presented to the Court for signature may 8 thereafter become a Party to this Stipulation and Protective Order by its counsel’s 9 signing and dating a copy thereof and filing the same with the Court, and serving 10 copies of such signed and dated copy upon the other Parties to this Stipulation and 11 Protective Order. 12 12. Any Information that may be produced by a non-Party witness in 13 discovery in the Proceeding pursuant to subpoena or otherwise may be designated 14 by such non-Party as “Confidential” under the terms of this Stipulation and 15 Protective Order, and any such designation by a non-Party shall have the same force 16 and effect, and create the same duties and obligations, as if made by one of the 17 undersigned Parties hereto. Any such designation shall also function as a consent by 18 such producing Party to the authority of the Court in the Proceeding to resolve and 19 conclusively determine any motion or other application made by any person or Party 20 with respect to such designation, or any other matter otherwise arising under this 21 Stipulation and Protective Order. 22 13. If any person subject to this Stipulation and Protective Order who has 23 custody of any Confidential Materials receives a subpoena or other process 24 (“Subpoena”) from any government or other person or entity demanding production 25 of Confidential Materials, the recipient of the Subpoena shall promptly give notice 26 of the same by electronic mail transmission, and phone call to counsel of record for 27 the Designating Party, and shall furnish such counsel with a copy of the Subpoena. 1 its own cost, move to quash or limit the Subpoena, otherwise oppose production of 2 the Confidential Materials, and/or seek to obtain confidential treatment of such 3 Confidential Materials from the subpoenaing person or entity to the fullest extent 4 available under law. The recipient of the Subpoena may not produce any 5 Documents, Testimony or Information pursuant to the Subpoena prior to the date 6 specified for production on the Subpoena. 7 14. Nothing in this Stipulation and Protective Order shall be construed to 8 preclude either Party from asserting in good faith that certain Confidential Materials 9 require additional protection. The Parties shall meet and confer to agree upon the 10 terms of such additional protection. 11 15. If, after execution of this Stipulation and Protective Order, any 12 Confidential Materials submitted by a Designating Party under the terms of this 13 Stipulation and Protective Order is Disclosed by a non-Designating Party to any 14 person other than in the manner authorized by this Stipulation and Protective Order, 15 the non-Designating Party responsible for the Disclosure shall bring all pertinent 16 facts relating to the Disclosure of such Confidential Materials to the immediate 17 attention of the Designating Party. 18 16. This Stipulation and Protective Order is entered into without prejudice 19 to the right of any Party to knowingly waive the applicability of this Stipulation and 20 Protective Order to any Confidential Materials designated by that Party. If the 21 Designating Party uses Confidential Materials in a non-Confidential manner, then 22 the Designating Party shall advise that the designation no longer applies. 23 17. The Parties shall meet and confer regarding the procedures for use of 24 Confidential Materials at trial and shall move the Court for entry of an appropriate 25 order. 26 18. Nothing in this Stipulation and Protective Order shall affect the 27 admissibility into evidence of Confidential Materials, or abridge the rights of any 1 respect to any ruling made by the Court concerning the issue of the status of 2 Protected Material. 3 19. This Stipulation and Protective Order shall continue to be binding after 4 the conclusion of this Proceeding and all subsequent proceedings arising from this 5 Proceeding, except that a Party may seek the written permission of the Designating 6 Party or may move the Court for relief from the provisions of this Stipulation and 7 Protective Order. To the extent permitted by law, the Court shall retain jurisdiction 8 to enforce, modify, or reconsider this Stipulation and Protective Order, even after 9 the Proceeding is terminated. 10 20. Upon written request made within thirty (30) days after the settlement 11 or other termination of the Proceeding, the undersigned Parties shall have thirty (30) 12 days to either (a) promptly return to counsel for each Designating Party all 13 Confidential Materials and all copies thereof (except that counsel for each Party may 14 maintain in its files, in continuing compliance with the terms of this Stipulation and 15 Protective Order, all work product, and one copy of each pleading filed with the 16 Court and one copy of each deposition together with the exhibits marked at the 17 deposition), (b) agree with counsel for the Designating Party upon appropriate 18 methods and certification of destruction or other disposition of such Confidential 19 Materials, or (c) as to any Documents, Testimony or other Information not 20 addressed by sub-paragraphs (a) and (b), file a motion seeking an order regarding 21 proper preservation of such Materials. To the extent permitted by law the Court 22 shall retain continuing jurisdiction to review and rule upon the motion referred to in 23 sub-paragraph (c) herein. 24 21. After this Stipulation and Protective Order has been signed by counsel 25 for all Parties, it shall be presented to the Court for entry. Counsel agree to be 26 bound by the terms set forth herein with regard to any Confidential Materials that 27 have been produced before the Court signs this Stipulation and Protective Order. 1 to be bound by this Stipulation and Protective Order pending its approval and entry 2 by the Court. In the event that the Court modifies this Stipulation and Protective 3 Order, or in the event that the Court enters a different Protective Order, the Parties 4 agree to be bound by this Stipulation and Protective Order until such time as the 5 Court may enter such a different Order. It is the Parties’ intent to be bound by the 6 terms of this Stipulation and Protective Order pending its entry so as to allow for 7 immediate production of Confidential Materials under the terms herein. 8 This Stipulation and Protective Order may be executed in counterparts. 9 10 DATED: February 3, 2020 MARTIN & BONTRAGER, APC 11 12 By: / s / NICHOLAS J. BONTRAGER 13 G. THOMAS MARTIN, III, ESQ. 14 NICHOLAS J. BONTRAGER, ESQ. 15 Attorney for Plaintiff KIMBERLEE PRINGLE 16 17 18 DATED: February 3, 2020 WOOD, SMITH, HENNING & BERMAN LLP 19 20 By: / s/ ZHASMINA Y. KOLAROVA 21 WYETH E. BURROWS 22 ZHASMINA Y. KOLAROVA Attorneys for Defendant, WESTERN DENTAL 23 SERVICES, INC. 24 25 26 27 1 ORDER 2 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 3 IT IS FURTHER ORDERED THAT: 4 1. Requests to seal documents shall be made by motion before the same judge who will 5 decide the matter related to that request to seal. 6 2. The designation of documents (including transcripts of testimony) as confidential 7 pursuant to this order does not automatically entitle the parties to file such a document with the 8 court under seal. Parties are advised that any request to seal documents in this district is governed 9 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 10 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 11 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 12 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 13 the requested duration, the identity, by name or category, of persons to be permitted access to the 14 document, and all relevant information.” L.R. 141(b). 15 3. A request to seal material must normally meet the high threshold of showing that 16 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 17 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 18 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana 19 v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 20 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of 21 certain documents, at any court hearing or trial – such determinations will only be made by the 22 court at the hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which 24 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local 25 Rule 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex 26 parte basis or on shortened time. 27 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s 2 approval. If the parties agree to a potential modification, they shall submit a stipulation and 3 proposed order for the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 5 of the terms of this Protective Order after the action is terminated. 6 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 7 hereby DISAPPROVED. 8 DATED: February 6, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 EXHIBIT A 2 NON-DISCLOSURE AGREEMENT 3 I, ____________________________________, understand that information 4 and/or documents which are disclosed to me by counsel of record for 5 _____________________________, which are designated as “Confidential” are 6 CONFIDENTIAL and to be used by me solely to assist in the matter of Kimberlee 7 Pringle v. Western Dental Service, Inc., USDC Eastern District of California, 8 Sacramento Division, Case No. 2:19-cv-02190-MCE-DB. 9 I further understand that the Protective Order entered by the Court, a copy of 10 which has been given to me, prohibits me from either using such information or 11 documents for any other purpose or disclosing such information or documents to 12 any person other than counsel of record or persons assisting them. 13 I further acknowledge that I am not presently a competitor or employed by a 14 competitor of Plaintiffs or Defendants, and will not use any Confidential document, 15 transcript or information obtained from any Confidential document or transcript to 16 compete with Plaintiffs or Defendants. In accepting disclosure, I agree to be bound 17 by the Protective Order and to be subject to the jurisdiction of the U.S.D.C. Eastern 18 District of California, Sacramento Division, Case No. 2:19-cv-02190-MCE-DB, for 19 the purpose of its enforcement of the Protective Order and the enforcement of my 20 obligations under this Non-disclosure Agreement. 21 22 Dated: ________________________ 23 ___________________________________ 24 Recipient’s Signature 25 26 27