Roth v. PTGMB LLC ( 2020 )

1 BLANK ROME LLP Ana Tagvoryan (SBN 246536) 2 atagvoryan@blankrome.com Harrison Brown (SBN 291503) 3 hbrown@blankrome.com Dustin Moaven (SBN 320939) 4 dmoaven@blankrome.com 2029 Century Park East | 6th Floor 5 Los Angeles, CA 90067 Telephone: 424.239.3400 6 Facsimile: 424.239.3434 7 Attorneys for Defendant PTGMB LLC 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 KELLI ROTH, individually and on behalf of all Case No. 1:20-cv-00231-SAB others similarly situated, 13 STIPULATED PROTECTIVE ORDER Plaintiff, 14 v. 15 PTGMB LLC D/B/A MERCEDES-BENZ OF 16 FRESNO, a California limited liability company, 17 Defendant. 18 19 20 21 22 23 24 25 26 27 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, 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. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 6 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 7 or responses to discovery and that the protection it affords from public disclosure and use extends 8 only to the limited information or items that are entitled to confidential treatment under the 9 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 10 this Stipulated Protective Order does not entitle them to file confidential information under seal; the 11 Local Rules of the United States District Court for the Eastern District of California set forth the 12 procedures that must be followed and the standards that will be applied when a party seeks 13 permission from the court to file material under seal. 14 2. DEFINITIONS 15 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 19 Civil Procedure 26(c). 20 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 21 as their support staff). 22 2.4 Designating Party: a Party or Non-Party that designates information or items that it 23 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 24 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 25 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 26 transcripts, and tangible things), that are produced or generated in disclosures or responses to 27 discovery in this matter. 1 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 2 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action. 4 2.7 House Counsel: attorneys who are employees of a party to this action. House 5 Counsel does not include Outside Counsel of Record or any other outside counsel. 6 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 7 entity not named as a Party to this action. 8 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 9 but are retained to represent or advise a party to this action and have appeared in this action on 10 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 11 2.10 Party: any party to this action, including all of its officers, directors, employees, 12 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 13 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 14 Material in this action. 15 2.12 Professional Vendors: persons or entities that provide litigation support services 16 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 17 storing, or retrieving data in any form or medium) and their employees and subcontractors. 18 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 19 “CONFIDENTIAL.” 20 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 21 Producing Party. 22 3. SCOPE 23 The protections conferred by this Stipulation and Order cover not only Protected Material (as 24 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 25 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 26 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 27 However, the protections conferred by this Stipulation and Order do not cover the following 1 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 2 publication not involving a violation of this Order, including becoming part of the public record 3 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 4 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 5 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 6 Protected Material at trial shall be governed by a separate agreement or order. 7 4. DURATION 8 Even after final disposition of this litigation, the confidentiality obligations imposed by this 9 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 10 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 11 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 12 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 13 time limits for filing any motions or applications for extension of time pursuant to applicable law. 14 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 16 Non-Party that designates information or items for protection under this Order must take care to 17 limit any such designation to specific material that qualifies under the appropriate standards. The 18 Designating Party must designate for protection only those parts of material, documents, items, or 19 oral or written communications that qualify – so that other portions of the material, documents, 20 items, or communications for which protection is not warranted are not swept unjustifiably within 21 the ambit of this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 23 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 24 encumber or retard the case development process or to impose unnecessary expenses and burdens on 25 other parties) expose the Designating Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it designated for 27 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 2 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 3 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 4 designated before the material is disclosed or produced. 5 Designation in conformity with this Order requires: 6 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 7 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 8 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or 9 portions of the material on a page qualifies for protection, the Producing Party also must clearly 10 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 11 A Party or Non-Party that makes original documents or materials available for inspection 12 need not designate them for protection until after the inspecting Party has indicated which material it 13 would like copied and produced. During the inspection and before the designation, all of the material 14 made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 15 identified the documents it wants copied and produced, the Producing Party must determine which 16 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 17 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 18 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 19 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 20 appropriate markings in the margins). 21 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 22 Designating Party identify on the record, before the close of the deposition, hearing, or other 23 proceeding, all protected testimony. 24 (c) for information produced in some form other than documentary and for any other 25 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 26 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 27 portion or portions of the information or item warrant protection, the Producing Party, to the extent 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the Designating Party’s 3 right to secure protection under this Order for such material. Upon timely correction of a 4 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 5 accordance with the provisions of this Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 8 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 9 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 10 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 11 confidentiality designation by electing not to mount a challenge promptly after the original 12 designation is disclosed. 13 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 14 by providing written notice of each designation it is challenging and describing the basis for each 15 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 16 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 17 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 18 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 19 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 20 Party must explain the basis for its belief that the confidentiality designation was not proper and 21 must give the Designating Party an opportunity to review the designated material, to reconsider the 22 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 23 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 24 has engaged in this meet and confer process first or establishes that the Designating Party is 25 unwilling to participate in the meet and confer process in a timely manner. 26 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 27 intervention, the Designating Party shall file and serve a motion to retain confidentiality in 1 California within 21 days of the initial notice of challenge or within 14 days of the parties agreeing 2 that the meet and confer process will not resolve their dispute, whichever is earlier. Each such 3 motion must be accompanied by a competent declaration affirming that the movant has complied 4 with the meet and confer requirements imposed in the preceding paragraph. Failure by the 5 Designating Party to make such a motion including the required declaration within 21 days (or 14 6 days, if applicable) shall automatically waive the confidentiality designation for each challenged 7 designation. In addition, the Challenging Party may file a motion challenging a confidentiality 8 designation at any time if there is good cause for doing so, including a challenge to the designation 9 of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision 10 must be accompanied by a competent declaration affirming that the movant has complied with the 11 meet and confer requirements imposed by the preceding paragraph. 12 The burden of persuasion in any such challenge proceeding shall be on the Designating 13 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 14 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 15 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 16 retain confidentiality as described above, all parties shall continue to afford the material in question 17 the level of protection to which it is entitled under the Producing Party’s designation until the court 18 rules on the challenge. 19 7. ACCESS TO AND USE OF PROTECTED MATERIAL 20 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 21 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the litigation has 24 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 25 DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party at a location and in a 27 secure manner that ensures that access is limited to the persons authorized under this Order. 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 2 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 3 information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 5 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 6 this litigation. 7 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party 8 to whom disclosure is reasonably necessary for this litigation and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 11 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 12 to Be Bound” (Exhibit A); 13 (d) the court and its personnel; 14 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 15 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 18 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 19 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 20 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 21 bound by the court reporter and may not be disclosed to anyone except as permitted under this 22 Stipulated Protective Order. 23 (g) the author or recipient of a document containing the information or a custodian or other 24 person who otherwise possessed or knew the information. 25 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 26 OTHER LITIGATION 27 1 If a Party is served with a subpoena or a court order issued in other litigation that compels 2 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 3 must: 4 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 5 of the subpoena or court order; 6 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 7 other litigation that some or all of the material covered by the subpoena or order is subject to this 8 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 10 Designating Party whose Protected Material may be affected. 11 If the Designating Party timely seeks a protective order, the Party served with the subpoena 12 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 13 before a determination by the court from which the subpoena or order issued, unless the Party has 14 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 15 expense of seeking protection in that court of its confidential material – and nothing in these 16 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 17 disobey a lawful directive from another court. 18 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 19 THIS LITIGATION 20 (a) The terms of this Order are applicable to information produced by a Non-Party in this 21 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 22 connection with this litigation is protected by the remedies and relief provided by this Order. 23 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 24 protections. 25 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 26 Party’s confidential information in its possession, and the Party is subject to an agreement with the 27 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 1 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the 2 information requested is subject to a confidentiality agreement with a Non-Party; 3 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 4 litigation, the relevant discovery request(s), and a reasonably specific description of the information 5 requested; and 6 (3) make the information requested available for inspection by the Non-Party. 7 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days 8 of receiving the notice and accompanying information, the Receiving Party may produce the Non- 9 Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a 10 protective order, the Receiving Party shall not produce any information in its possession or control 11 that is subject to the confidentiality agreement with the Non-Party before a determination by the 12 court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 13 seeking protection in this court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 16 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 17 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 18 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 19 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 20 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 21 Be Bound” that is attached hereto as Exhibit A. 22 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 23 PROTECTED MATERIAL 24 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 25 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 26 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 27 modify whatever procedure may be established in an e-discovery order that provides for production 1 parties reach an agreement on the effect of disclosure of a communication or information covered by 2 the attorney-client privilege or work product protection, the parties may incorporate their agreement 3 in the stipulated protective order submitted to the court. 4 12. MISCELLANEOUS 5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 6 its modification by the court in the future. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 8 no Party waives any right it otherwise would have to object to disclosing or producing any 9 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 10 Party waives any right to object on any ground to use in evidence of any of the material covered by 11 this Protective Order. 12 12.3 Filing Protected Material. Without written permission from the Designating Party or a 13 court order secured after appropriate notice to all interested persons, a Party may not file in the 14 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 15 Material must comply with Local Rules of the United States District Court for the Eastern District of 16 California. Protected Material may only be filed under seal pursuant to a court order authorizing the 17 sealing of the specific Protected Material at issue. A sealing order will issue only upon the showing 18 required by applicable law. If a Receiving Party’s request to file Protected Material under seal is 19 denied by the court, then the Receiving Party may file the information in the public record pursuant 20 to unless otherwise instructed by the court. 21 13. FINAL DISPOSITION 22 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 23 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 24 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 25 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 26 the Protected Material is returned or destroyed, upon written request by the Producing Party, the 27 Receiving Party must submit a written certification to the Producing Party (and, if not the same 1 where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 2 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 3 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 4 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 5 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 6 work product, and consultant and expert work product, even if such materials contain Protected 7 Material. Any such archival copies that contain or constitute Protected Material remain subject to 8 this Protective Order as set forth in Section 4 (DURATION). 9 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 10 DATED: June 25, 2020 EISENBAND LAW, P.A. 11 12 By: /s/ Michael Eisenband Michael Eisenband 13 Attorney for Plaintiff KELLI ROTH 14 15 DATED: June 25, 2020 BLANK ROME LLP 16 17 By: /s/ Harrison Brown Ana Tagvoryan 18 Harrison Brown Dustin Moaven 19 Attorneys for Defendant PTGMB LLC 20 Local Rule 131(e) 21 I certify that approval of the filing of this document has been obtained from each of the other 22 counsel-signatories and that each of the other counsel-signatories have authorized submission of this 23 document on their behalf. 24 25 By: /s/ Harrison Brown Harrison Brown 26 27 1 EXHIBIT A: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, _____________________________________________________ [print or type full name], 3 of ______________________________________________________________________________ 4 _________________________________________________________________________________ 5 [print or type full address], _______________________________ [print or type telephone number], 6 declare under penalty of perjury that I have read in its entirety and understand the Stipulated 7 Protective Order that was issued by the United States District Court for the Eastern District of 8 California in the case of Roth v. PTGMB LLC, No. 20-00231. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 10 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective Order 12 to any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 15 if such enforcement proceedings occur after termination of this action. 16 I hereby appoint _________________________________________ [print or type full name] 17 of ______________________________________________________________________________ 18 _________________________________________________________________________________ 19 [print or type full address], _______________________________ [print or type telephone number], 20 as my California agent for service of process in connection with this action or any proceedings 21 related to enforcement of this Stipulated Protective Order. 22 23 Date: 24 City and State where sworn and signed: 25 Printed name: 26 Signature: 27 wOAOe UVM EV LYASE ob PO rere AY OT Ott 1 ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States District 5 Court, Eastern District of California, any documents which are to be filed under seal 6 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 Creditors 10 Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 11 b IT IS SO ORDERED. ee 13 Dated: _June 26, 2020 _ _ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1TLOLNI ANCNA1AQOACTIALC.. 2 1A