Insixiengmay v. Hyatt Corp. ( 2021 )

11 J. Scott Carr (SBN 136706) scarr@kcozlaw.com 22 Abigail Stecker Romero (SBN 284534) aromero@kcozlaw.com 33 KABAT CHAPMAN & OZMER LLP 44 333 S. Grand Ave, Suite 2225 Los Angeles, CA 90071 55 Telephone: (213) 493-3980 Facsimile: (404) 400-7333 66 Attorneys for Defendant HYATT CORPORATION d/b/a HYATT REGENCY SACRAMENTO 77 (erroneously sued as both “Hyatt Corporation” and “Hyatt Corporation d/b/a Hyatt Regency 88 Sacramento) 99 Galen T. Shimoda (SBN 226752) attorney@shimodalaw.com 1100 Justin P. Rodriguez (SBN 278275) jrodriguez@shimodalaw.com 1111 Shimoda Law Corp. 9401 E. Stockton Blvd., Suite 120, 1122 Elk Grove, CA 95624 1133 Telephone: (916) 525-0716 Facsimile: (916) 760-3733 1144 Attorneys for Plaintiff Janice Insixiengmay, individually and on behalf of all others similarly 1155 situated 1166 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1177 1188 JANICE INSIXIENGMAY, individually and on No. 2:18-cv-02993 TLN DB behalf of all others similarly situated, 1199 Plaintiff, STIPULATED PROTECTIVE ORDER; AND 2200 ORDER vs. 2211 HYATT CORPORATION, a Delaware 2222 Corporation; HYATT CORPORATION DBA 2233 HYATT REGENCY SACRAMENTO, an unknown association; and DOES 1 to 100, 2244 inclusive, 2255 Defendants. 2266 2277 2288 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, proprietary, or private 3 information for which special protection from public disclosure and from use for any purpose other 4 than prosecuting this litigation may be warranted. Accordingly, Plaintiff Janice Insixiengmay 5 (“Plaintiff”) and Defendant Hyatt Corporation (“Defendant”) (collectively, the “Parties”) hereby 6 stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties 7 acknowledge that this Protective Order does not confer blanket protections on all disclosures or 8 responses to discovery and that the protection it affords from public disclosure and use extends only 9 to the limited information or items that are entitled to confidential treatment under the applicable legal 10 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Protective 11 Order does not entitle them to file confidential information under seal; Civil Local Rule 141 sets forth 12 the 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 B. GOOD CAUSE STATEMENT 15 This action is likely to involve confidential employee information, trade secrets, and other 16 valuable information regarding internal, confidential, and proprietary practices and policies, for which 17 special protection from public disclosure and from use for any purpose other than prosecution of this 18 action is warranted. Such confidential and proprietary materials and information consist of, among 19 other things, personally identifying information regarding Defendant’s employees, private financial 20 compensation records, proprietary internal documents regarding Defendant’s employment and 21 business policies, practices, and strategies, and other information regarding confidential business 22 practices, or other confidential research, development, or commercial information (including 23 information implicating privacy rights of third parties), which are not otherwise generally available to 24 the public, or which may be competitively sensitive, privileged or otherwise protected from disclosure 25 under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite 26 the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery 27 materials, to adequately protect information the parties are entitled to keep confidential, to ensure that 28 1 conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a 2 protective order for such information is justified in this matter as opposed to a private agreement 3 between or among the Parties. It is the intent of the parties that information will not be designated as 4 confidential for tactical reasons and that nothing be so designated without a good faith belief that it 5 has been maintained in a confidential, non-public manner, and there is good cause why it should not 6 be part of the public record of this case. 7 2. DEFINITIONS 8 2.1 Action: the above-entitled proceeding Case No. 2:18-cv-02993-TLN-DB. 9 2.2 Challenging Party: A Party or Non-Party that challenges the designation of information 10 or items under this Protective Order. 11 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of how it is 12 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 13 Civil Procedure 26(c), and as specified above in the Good Cause Statement. 14 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 15 2.5 Designating Party: a Party or Non-Party that designates information or items that it 16 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 17 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 18 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 19 transcripts, and tangible things), that are produced or generated in disclosures or responses to 20 discovery in this matter. 21 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 22 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant 23 in this Action. 24 2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel 25 does not include Outside Counsel of Record or any other outside counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 27 entity not named as a Party to this action. 28 1 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action 2 but are retained to represent or advise a party to this Action and have appeared in this Action on behalf 3 of that party or are affiliated with a law firm which has appeared on behalf of that party, and includes 4 support staff. 5 2.11 Party: any party to this Action, including all of its officers, directors, employees, 6 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material 8 in this Action. 9 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., 10 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, 11 or retrieving data in any form or medium) and their employees and subcontractors. 12 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 13 “CONFIDENTIAL.” 14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 15 Producing Party. 16 3. SCOPE 17 The protections conferred by this Protective Order cover not only Protected Material (as 18 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 19 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 20 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 21 Any use of Protected Material at trial shall be governed by the orders of the trial judge. This 22 Protective Order does not govern the use of Protected Material at trial. 23 4. DURATION 24 Even after final disposition of this litigation, the confidentiality obligations imposed by this 25 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 26 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 27 and defenses in this Action, with or without prejudice; and (2) final judgment herein after the 28 1 including the time limits for filing any motions or applications for extension of time pursuant to 2 applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 5 Non-Party that designates information or items for protection under this Protective Order must take 6 care to limit any such designation to specific material that qualifies under the appropriate standards. 7 The Designating Party must designate for protection only those parts of material, documents, items, 8 or oral or written communications that qualify so that other portions of the material, documents, items, 9 or communications for which protection is not warranted are not swept unjustifiably within the ambit 10 of this Protective Order. 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 Parties 13 that it is withdrawing the inapplicable designation. 14 5.2 Manner and Timing of Designations. Except as otherwise provided in this Protective 15 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 16 Disclosure or Discovery Material that qualifies for protection under this Protective Order must be 17 clearly so designated before the material is disclosed or produced. 18 Designation in conformity with this Order requires: 19 (a) for information in documentary form (e.g., paper or electronic documents, but 20 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 21 affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each 22 page that contains protected material. If only a portion or portions of the material on a page qualifies 23 for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 24 appropriate markings in the margins). 25 A Party or Non-Party that makes original documents available for inspection need not 26 designate them for protection until after the inspecting Party has indicated which documents it would 27 like copied and produced. During the inspection and before the designation, all of the material made 28 1 the documents it wants copied and produced, the Producing Party must determine which documents, 2 or portions thereof, qualify for protection under this Protective Order. Then, before producing the 3 specified documents, the Producing Party must affix the "CONFIDENTIAL legend" to each page that 4 contains Protected Material. If only a portion or portions of the material on a page qualifies for 5 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 6 appropriate markings in the margins). 7 (b) for testimony given in depositions that the Designating Party identify the Disclosure or 8 Discovery Material on the record, before the close of the deposition, all protected testimony. 9 (c) for information produced in some form other than documentary and for any other 10 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 11 containers in which the information is stored the legend "CONFIDENTIAL." If only a portion or 12 portions of the information warrants protection, the Producing Party, to the extent practicable, shall 13 identify the protected portion(s). 14 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 15 designate qualified information or items does not, standing alone, waive the Designating Party’s right 16 to secure protection under this Protective Order for such material. Upon timely correction of a 17 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 18 accordance with the provisions of this Protective Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 21 confidentiality at any time that is consistent with this Protective Order. 22 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 23 under Local Rule 251. 24 6.3 The burden of persuasion in any such challenge proceeding shall be on the Designating 25 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 26 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 27 Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall 28 1 continue to afford the material in question the level of protection to which it is entitled under the 2 Producing Party’s designation until the Court rules on the challenge. 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 5 produced by another Party or by a Non-Party in connection with this Action only for prosecuting, 6 defending, or attempting to settle this Action. Such Protected Material may be disclosed only to the 7 categories of persons and under the conditions described in this Protective Order. When the Action 8 has been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 9 DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and in a 11 secure manner that ensures that access is limited to the persons authorized under this Protective Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 13 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 14 information or item designated “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as employees 16 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 17 this Action; 18 (b) the officers, directors, and employees (including House Counsel) of the Receiving 19 Party to whom disclosure is reasonably necessary for this Action; 20 (c) experts (as defined in this Protective Order) to whom disclosure is reasonably necessary 21 for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (d) the Court and its personnel; 23 (e) court reporters and their staff; 24 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 25 disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A); 27 (g) the author or recipient of a document containing the information or a custodian or other 28 1 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom 2 disclosure is reasonably necessary provided: (1) the deposing party requests that the witness sign the 3 "Acknowledgment and Agreement to Be Bound" (Exhibit A); and (2) the witness will not be permitted 4 to keep any confidential information unless they sign the "Acknowledgment and Agreement to Be 5 Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages 6 of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be 7 separately bound by the court reporter and may not be disclosed to anyone except as permitted under 8 this Protective Order; and 9 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed 10 upon by any of the parties engaged in settlement discussions. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 12 LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation that compels 14 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that Party 15 must: 16 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 17 of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 19 other litigation that some or all of the material covered by the subpoena or order is subject to this 20 Protective Order. Such notification shall include a copy of this Protective Order; and 21 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 22 Designating Party whose Protected Material may be affected. 23 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 24 court order shall not produce any information designated in this action as “CONFIDENTIAL” before 25 a determination by the court from which the subpoena or order issued, unless the Party has obtained 26 the Designating Party’s permission. The Designating Party shall bear the burden and expense of 27 seeking protection in that court of its confidential material and nothing in these provisions should be 28 1 construed as authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 2 from another court. 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 4 LITIGATION 5 (a) The terms of this Protective Order are applicable to information produced by a Non- 6 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non- 7 Parties in connection with this litigation is protected by the remedies and relief provided by this 8 Protective Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 9 seeking additional protections. 10 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 11 Party’s confidential information in its possession, and the Party is subject to an agreement with the 12 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 13 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 14 the information requested is subject to a confidentiality agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Protective Order in this Action, the 16 relevant discovery request(s), and a reasonably specific description of the information requested; and 17 (3) make the information requested available for inspection by the Non-Party, if requested. 18 (c) If the Non-Party fails to seek a protective order from this Court within 14 days of 19 receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s 20 confidential information responsive to the discovery request. If the Non-Party timely seeks a protective 21 order, the Receiving Party shall not produce any information in its possession or control that is subject 22 to the confidentiality agreement with the Non-Party before a determination by the court. Absent a 23 court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in 24 this Court of its Protected Material. 25 26 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 27 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 28 1 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 2 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 3 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 4 Protective Order, and (d) request such person or persons to execute the “Acknowledgment and 5 Agreement to Be Bound” attached hereto as Exhibit A. 6 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 7 MATERIAL 8 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 9 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 10 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 11 modify whatever procedure may be established in an e-discovery order that provides for production 12 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 13 parties reach an agreement on the effect of disclosure of a communication or information covered by 14 the attorney-client privilege or work product protection, the parties may incorporate their agreement 15 in the stipulated protective order submitted to the Court. 16 12. MISCELLANEOUS 17 12.1 Right to Further Relief. Nothing in this Protective Order abridges the right of any 18 person to seek its modification by the Court in the future. 19 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order, 20 no Party waives any right it otherwise would have to object to disclosing or producing any information 21 or item on any ground not addressed in this Protective Order. Similarly, no Party waives any right to 22 object on any ground to use in evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material 24 must comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to 25 a court order authorizing the sealing of the specific Protected Material at issue. If a Party's request to 26 file Protected Material under seal is denied by the Court, then the Receiving Party may file the 27 information in the public record unless otherwise instructed by the Court. 28 1 After the final disposition of this Action, as defined in paragraph 4, within 60 days of a written 2 request by the Designating Party, each Receiving Party must return all Protected Material to the 3 Producing Party or destroy such material. As used in this subdivision, "all Protected Material" includes 4 all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of 5 the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 6 must submit a written certification to the Producing Party (and, if not the same person or entity, to the 7 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the 8 Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not 9 retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing 10 any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 11 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 12 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 13 and expert work product, even if such materials contain Protected Material. Any such archival copies 14 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 15 Section 4 (DURATION). 16 14. Any violation of this Protective Order may be punished by any and all appropriate measures 17 including, without limitation, contempt proceedings and/or monetary sanctions. 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 19 KABAT CHAPMAN & OZMER LLP 20 21 Dated: January 19, 2021 By: /s/ J. Scott Carr J. Scott Carr 22 Abigail Stecker Romero 23 Attorneys for Defendant 24 25 SHIMODA LAW CORP. 26 Dated: January 19, 2021 By: /s/ Justin P. Rodríguez (as authorized on January 27 19, 2021) Galen T. Shimoda 28 1 Brittany V. Berzin 2 Attorneys for Plaintiff 3 4 ORDER 5 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 6 IT IS FURTHER ORDERED THAT: 7 1. Requests to seal documents shall be made by motion before the same judge who will decide 8 the matter related to that request to seal. 9 2. The designation of documents (including transcripts of testimony) as confidential pursuant 10 to this order does not automatically entitle the parties to file such a document with the court under 11 seal. Parties are advised that any request to seal documents in this district is governed by Local Rule 12 141. In brief, Local Rule 141 provides that documents may only be sealed by a written order of the 13 court after a specific request to seal has been made. L.R. 141(a). However, a mere request to seal is 14 not enough under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal 15 Documents’ shall set forth the statutory or other authority for sealing, the requested duration, the 16 identity, by name or category, of persons to be permitted access to the document, and all relevant 17 information.” L.R. 141(b). 18 3. A request to seal material must normally meet the high threshold of showing that 19 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially related” 20 to the merits of a case, the request to seal may be granted on a showing of “good cause.” Ctr. for Auto 21 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and 22 County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 23 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 24 documents, at any court hearing or trial – such determinations will only be made by the court at the 25 hearing or trial, or upon an appropriate motion. 26 5. With respect to motions regarding any disputes concerning this protective order which the 27 parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 28 1 Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on 2 shortened time. 3 6. The parties may not modify the terms of this Protective Order without the court’s approval. 4 If the parties agree to a potential modification, they shall submit a stipulation and proposed order for 5 the court’s consideration. 6 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of 7 the terms of this Protective Order after the action is terminated. 8 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is 9 hereby DISAPPROVED. 10 DATED: January 19, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand, the Protective Order that was issued by the United States District Court for the Central 6 District of California in the case of Insixiengmay, et. al. v. Hyatt Corporation Communications, et al., 7 No. 2:18-cv-02993-TLN-DB. I agree to comply with and to be bound by all the terms of this Protective 8 Order and I understand and acknowledge that failure to so comply could expose me to sanctions and 9 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any 10 information or item that is subject to this Protective Order to any person or entity except in strict 11 compliance with the provisions of this Protective Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 13 District of California for the purpose of enforcing the terms of this Protective Order, even if such 14 enforcement proceedings occur after termination of this action. I hereby appoint 15 ______________________ [print or type full name] of ________________________________ [print 16 or type full address and telephone number] as my California agent for service of process in connection 17 with this action or any proceedings related to enforcement of this Protective Order. 18 Date: 19 City and State where sworn and signed: 20 21 Printed name:____________________ 22 23 Signature:_______________________ 24 25 26 27 28