Smith v. Superior Farms ( 2021 )

1 BOUTIN JONES INC. James D. McNairy (SBN 230903) 2 jmcnairy@boutinjones.com Andrew M. Ducart (SBN 29371) 3 aducart @boutinjones.com 555 Capitol Mall, Suite 1500 4 Sacramento, CA 95814 Telephone: (916) 321-4444 5 Fax: (916) 441-7597 6 Attorneys for Defendant Ellensburg Lamb Co., Inc., d.b.a. Superior Farms (erroneously sued and served as 7 “Superior Farms”) 8 Clayeo C. Arnold (SBN 65070) Joshua H. Watson (SBN 238058) 9 Clayeo C. Arnold, A Professional Law Corporation 10 865 Howe Ave. Sacramento, CA 95825 11 Telephone: (916) 777-7777 Fax: (916) 924-1829 12 Email: jwatson@justice4you.com 13 Attorneys for Plaintiff Ryan Smith, individually, and on behalf of similarly situated employees 14 15 UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 18 RYAN SMITH, individually and on behalf of No. 2:20-cv-1778 KJM DB similarly situated employees, 19 Plaintiff, STIPULATED PROTECTIVE 20 ORDER v. 21 SUPERIOR FARMS, 22 Defendant. 23 24 This Stipulated Protective Order (“Protective Order”) is entered into by and between 25 Plaintiff Ryan Smith and Defendant Ellensburg Lamb Co., Inc., d.b.a. Superior Farms (erroneously 26 sued and served as “Superior Farms”), by and through their counsel of record, in order to facilitate 27 the exchange of information and documents in this action which may be subject to confidentiality 28 limitations on disclosure due to federal laws, state laws, and privacy rights. 1 STIPULATION AND PROTECTIVE ORDER 2 WHEREAS, the Parties anticipate that, given the nature of the claims in this action, they 3 will be asked to produce documents, provide testimony and/or otherwise disclose confidential, third 4 party private information, private personnel information, trade secret, proprietary business, and/or 5 financial information, and/or other information that requires protection as confidential (hereinafter 6 defined as “Confidential Information”). 7 WHEREAS, the Parties to this Action specifically expect that Defendant will be asked to 8 produce personnel, time, and payroll records that implicate the constitutionally-protected privacy 9 rights of its employees, as well as internal business records relating to Defendant’s employment 10 policies and practices and business operations that contain highly proprietary and sensitive business 11 information, the disclosure of which poses a substantial risk of harm to the Defendant’s proprietary 12 and financial interests, including but not limited to (i) proprietary information related to Defendant’s 13 operations, (ii) sensitive data regarding non-party employees of Defendant and other third parties; 14 and (iii) other proprietary technical or commercially sensitive information that is not otherwise 15 available to the public, including, but not limited to, information implicating commercial or trade 16 secret interests of Defendant; 17 WHEREAS, the disclosure of any such Confidential Information within this Action is made 18 solely for purposes of this Action and shall not be used for any other purpose; 19 WHEREAS, the Parties to this Action seek this Protective Order to establish procedures that 20 will protect all Confidential Information while expediting the discovery process, limiting the 21 occasion for discovery disputes regarding confidentiality and facilitating the disposition by the 22 Court of any disputes that may arise in connection with discovery. 23 IT IS HEREBY STIPULATED, by and between the Parties, through their respective 24 attorneys of record, as follows: 25 This Protective Order shall apply to all documents, materials, and information, including 26 without limitation, documents produced, answers to interrogatories, responses to requests for 27 admission, deposition testimony, and other information disclosed pursuant to the disclosure and 1 A. DEFINITIONS 2 The following definitions shall apply to this Protective Order: 3 1. The “Action” shall mean and refer to the above-captioned matter and to all actions 4 now or later consolidated with the Action, and any appeal from the Action and from any other action 5 consolidated at any time under the above-captioned matter, through final judgment. 6 2. “Document” refers to all things that come within the definition of a “writing,” 7 “recording,” or “photograph” contained in Rule 1001 of the Federal Rules of Evidence; including, 8 without limitation, documents of any kind, however reproduced and however transcribed or 9 translated; electronic storage devices, electronic recordings of any kind, including computer 10 program files, data files, source code, CD-ROM, or electronic mail; photographs or other visual or 11 audio visual recording of any kind; including still or motion pictures, microfilm, microfiche, 12 videotapes, or laser discs; and sound recording of any kind, including voicemail, cassette, 13 microcassettes, or compact discs. Every original draft, iteration or non-identical copy is a separate 14 Document as that term is used herein. 15 3. “Confidential” shall mean information designated “Confidential” pursuant to this 16 Protective Order. Information designated “Confidential” is that which concerns or relates to private 17 third party information, and/ or proprietary business, commercial and/or trade secret interests of a 18 Party as determined in good faith by the attorneys representing the Designating Party. Confidential 19 Documents, material, and/or information shall be used solely for purposes of litigation. Confidential 20 Information shall not be used by the non-Designating Party for any business or other purpose, unless 21 agreed to in writing by all Parties to this Action or as authorized by further order of the Court. 22 4. “Confidential Document” shall mean any Document that any Producing Party (as 23 defined below) designates as “Confidential” in the manner set forth in this Protective Order. 24 5. “Confidential Information” shall mean any information not made available to the 25 general public that concerns or relates to private, personal, proprietary business, trade secret, and/or 26 financial information and that may be subject to a protective order under applicable law. 27 6. “Designating Party” shall mean the party in this Action, or any third parties, 1 7. “Producing Party” shall mean the Party producing Documents or providing testimony 2 or other written discovery responses in this Action, whether informally or pursuant to the Federal 3 Rules of Civil Procedure. 4 8. “Receiving Party” as used herein shall mean the Party that receives disclosure or 5 discovery material in this Action. 6 9. “Legend” as used herein shall mean a stamp or similar insignia stating “Confidential,” 7 or other appropriate term or terms identifying the level of confidentiality of the Document. 8 10. “Court” shall refer to the United States District Court for the Eastern District of 9 California, and include any judge to which this Action may be assigned as well as court staff 10 participating in such proceedings. 11 11. When reference is made to any Document, the singular shall include the plural, and 12 the plural shall include the singular. 13 B. TERMS OF THE PROTECTIVE ORDER 14 1. Designation of Documents. 15 a. Any Producing Party may designate any Document as “Confidential” that the 16 party reasonably, and in good faith, believes contains Confidential Information. 17 b. The Producing Party may designate a Document as “Confidential” by affixing 18 the appropriate Legend to all copies of the Document (or CD or disk produced) at the time of 19 production. The Producing Party must make document designations at the time of production or 20 within a reasonable time thereafter if such designations are inadvertently omitted. 21 c. Alternatively, if it is not feasible to mark or designate a Document as described 22 above in Section B(1)(b), the Producing Party may send a cover letter with the Document noting 23 which portions of the Document are “Confidential.” This shall have the same force and effect as 24 affixing the appropriate Legend to all copies of the Document. 25 d. A party may designate as “Confidential,” a Document produced by someone 26 else which contains or refers to Confidential Information by informing, in writing, all Parties of the 27 Bates number of such Document within seven (7) days of that Party’s receipt of the Document or 1 e. Any Party may designate a deposition or hearing transcript (or any portion 2 thereof or exhibit thereto) which reveals Confidential Information as “Confidential” by: (i) making 3 such designation on the record during the deposition or hearing (in which case, the stenographer 4 shall affix the appropriate Legend to the cover page and all designated pages of the transcript and 5 all copies thereof); or (ii) informing counsel for all other Parties of such designation in writing 6 within thirty (30) days of receipt of the transcript (in which case, any party in possession of an 7 original or copy of the transcript shall affix the appropriate Legend to the cover page and all 8 designated pages and exhibits). 9 2. Provisions and Limitations of Use. 10 a. All Confidential Documents in this Action shall be used solely for purposes 11 of the prosecution, defense, or settlement of this Action; including, without limitation, discovery, 12 motions, briefs, and preparation for the trial, and for no other purpose, except as otherwise stated 13 within this Protective Order. This Protective Order does not affect the admissibility of Confidential 14 Documents or Confidential Information in this Action. 15 b. Unless the Designating Party agrees otherwise, and subject to the provisions 16 regarding “Confidential” information below, documents designated “Confidential” and any 17 summaries, charts or notes made therefrom, and any facts or information contained therein or 18 derived therefrom, shall not be disclosed to any person except: 19 i. The Court; 20 ii. Designated counsel of record and employees of designated counsel of 21 record; 22 iii. The Parties and representatives of the Parties; 23 iv. Independent contractors, experts, consultants, or advisors who are 24 employed or retained by, or on behalf of, any of the Parties or counsel for the Parties to this Action 25 to assist in preparation of the trial; 26 v. Stenographic reporters who are involved in depositions or any 27 proceedings in this Action; 1 vii. Deponents and witnesses; and 2 viii. Any other person as to whom the Parties agree in writing that 3 disclosure is appropriate. 4 c. “Designated counsel” as set forth in Section B(2)(b)(ii) above are limited to counsel 5 of record in this Action and in-house legal counsel for the entity Parties. Other than persons as 6 expressly set forth in this Section, no other counsel shall be permitted access to Documents 7 designated “Confidential” in this Action, unless otherwise agreed to by all of the Parties in writing. 8 3. Duty to Inform of Order. Unless the Designating Party agrees otherwise, 9 Documents designated “Confidential” may be disclosed to persons referred to in Section B(2)(b), 10 only after such persons have been provided with, and have reviewed, a copy of this Protective Order. 11 4. Persons Required to Sign Order. Unless the Designating Party agrees otherwise, 12 Documents designated “Confidential” may be disclosed to persons referred to in categories (iv), 13 (vii) and (viii) of Section B(2)(b), only after these persons have been provided with a copy of this 14 Protective Order and have signed the certification attached hereto as Exhibit A. This certification 15 shall be retained by the counsel to the Party disclosing the Confidential Documents or Confidential 16 Information, and shall not be discoverable by any other Party unless a dispute arises concerning an 17 alleged violation of this Protective Order. 18 5. Copies. Any person who obtains access to material designated as “Confidential” shall 19 not make copies, abstracts, extracts, analyses, summaries, or other materials which contain, reflect 20 or disclose Confidential Information, except for use in this litigation, and each such copy, abstract, 21 extract, analysis, summary, or other material which contains, reflects or discloses Confidential 22 Information, is to be treated in accordance with the provisions of this Protective Order. In the event 23 that copies are made in accordance with the foregoing, all such copies shall constitute, and be treated 24 as, “Confidential” Documents as provided in this Protective Order. Any person making, or causing 25 to be made, copies of any “Confidential” Documents shall make certain that each copy bears the 26 appropriate Legend, pursuant to the requirements of the Protective Order. 27 6. Agreement to Maintain Confidentiality. Unless and until otherwise ordered by the 1 treated as such under this Protective Order. 2 7. Objections to Designation. Following the receipt of Documents (including 3 deposition or hearing transcripts) marked “Confidential,” any Party to the Action may object to the 4 designation of such Document and seek a modification of such designation by serving a written 5 objection on the Designating Party. Thereafter, the Parties shall first make a good faith effort to 6 resolve such dispute. If the Party objecting to the designation and the Designating Party are unable 7 to resolve the objection to a “Confidential” designation, the Party objecting to the designation may 8 at any time during the pendency of the Action move the Court for an order with respect to the 9 disputed information. No part of this section will affect the Designating Party’s burden to show that 10 the Document is correctly designated as “Confidential.” If a Party files a motion regarding a 11 designation under this Section of the Protective Order, the designated information shall be lodged 12 with the Court separately and not filed. 13 8. Separate Protective Order or Modification of This Protective Order. This 14 Protective Order shall be without prejudice to the right of the Parties to the Action to present a 15 motion to the Court for a separate protective order as to any particular Document or information 16 including restrictions differing from those specified in this Protective Order. In addition, this 17 Protective Order shall not be deemed to prejudice the Parties, in any way, in any future application 18 for modification of this Protective Order. 19 9. Additional Disclosure. If either counsel wishes to disclose “Confidential” material 20 to any person not identified in paragraphs B(2)(b) and B(2)(c) above; including, without limitation, 21 a party that produced the “Confidential” material, or any third party who was the author or recipient 22 of material produced in this litigation that is designated “Confidential,” he or she must proceed in 23 the following manner: the names of the persons to whom “Confidential” material is to be disclosed 24 shall be provided in writing to lead counsel for the Producing Party, along with the basis for his or 25 her need to know, and a description with reasonable specificity of the Confidential material to be 26 disclosed. Counsel for the Producing Party shall have seven (7) days to object to such disclosure in 27 writing. If no objection is made in that time, the request is deemed granted. If an objection to the 1 confidentially-designated materials must apply for relief to the Court. Such material shall not be 2 disclosed pending a decision by the Court on such motion. Prior to the disclosure of “Confidential” 3 material to any such person, the person must agree to be bound by the terms of this Protective Order 4 by signing the Certificate of Acknowledgment in the form of Exhibit A hereto. By such execution, 5 the person represents that he or she understands the terms of this Protective Order and that he or she 6 agrees to be bound by its terms. The person will be shown only such identified “Confidential” 7 materials as are essential to enable him or her to render the assistance required and will not have the 8 right to retain copies or originals of the Documents reviewed. 9 10. Filing Confidential Material. Without written permission from the Designating 10 Party or a court order secured after appropriate notice to all interested persons, a Party may not file 11 in the public record in this action any “Confidential” material. A Party that seeks to file under seal 12 any “Confidential” material must comply with Local Rule 141. “Confidential” material may only 13 be filed under seal pursuant to a court order authorizing the sealing of the specific “Confidential” 14 material at issue. Pursuant to Local Rule 141, a sealing order will issue only upon a request 15 establishing that the “Confidential” material at issue is entitled to protection under applicable law. 16 If a Receiving Party's request to file “Confidential” material under seal pursuant to Local Rule 141 17 is denied by the Court, then the Receiving Party may file the information in the public record unless 18 otherwise instructed by the court. 19 11. Inadvertent Production of Confidential Documents or Information. The 20 inadvertent production or disclosure of any Confidential Document or Confidential Information 21 shall not, in itself, constitute a waiver or impairment of any claim of confidentiality, privilege or 22 other protection from discovery. All Parties, however, reserve all rights to challenge the confidential 23 status of such inadvertent production or disclosure. Upon learning that information protected from 24 discovery has been inadvertently produced or disclosed, the non-Producing Party who received such 25 information shall make good faith and reasonable efforts to reclaim any such Document and copies 26 thereof that may have been provided to any third party and/or to prevent further disclosures or 27 dissemination of such information. 1 12. Subpoena of Confidential Document or Confidential Information. If, at any time, 2 any Confidential Document or Confidential Information is subpoenaed, or otherwise requested by 3 any other person or entity purporting to have authority to require the production of any such 4 document or information, the Party to whom the subpoena or other request is directed shall give 5 written notice within three (3) business days thereof to the Designating Party and shall make no 6 disclosure unless the Designating Party has consented to such a disclosure in writing. 7 13. Continuation of Protection After Disposition. The termination of proceedings in 8 the Action shall not relieve any of the Parties from the obligation of maintaining the confidentiality 9 of all Confidential Documents and Confidential Information produced and designated pursuant to 10 this Protective Order, unless all of the Parties to the Action agree otherwise. Upon the final 11 disposition of the Action, the Parties shall, within thirty (30) days, promptly return any Confidential 12 Documents (and all copies made thereof) to the Producing Party from whom such Documents were 13 obtained; provided, however, that the Parties’ counsel shall be entitled to keep in their possession 14 any court filings or filings made with the Court, deposition transcripts or hearing transcripts, legal 15 memoranda, correspondence, and/or attorney work product, all of which shall continue to be 16 governed by this Protective Order. 17 IT IS SO STIPULATED. 18 Dated: April 8, 2021 BOUTIN JONES INC. 19 20 By: /s/ James D. McNairy______________ JAMES D. MCNAIRY 21 Attorneys for Defendant Ellensburg Lamb Co., Inc., 22 d.b.a. Superior Farms (erroneously sued and served as “Superior Farms”) 23 24 Dated: April 8, 2021 CLAYEO C. ARNOLD, APLC 25 26 By: /s/ Joshua H. Watson (as authorized on 4/8/2021) JOSHUA H. WATSON 27 Attorneys for Plaintiff Ryan Smith, individually, and 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 pursuant 7 to this order does not automatically entitle the parties to file such a document with the court under 8 seal. Parties are advised that any request to seal documents in this district is governed by Local 9 Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a written order 10 of the court after a specific request to seal has been made. L.R. 141(a). However, a mere request 11 to seal is not enough under the local rules. In particular, Local Rule 141(b) requires that “[t]he 12 ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, the requested 13 duration, the identity, by name or category, of persons to be permitted access to the document, and 14 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 certain 21 documents, at any court hearing or trial – such determinations will only be made by the court at the 22 hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which the 24 parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 25 Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or 26 on shortened time. 27 //// 1 6. The parties may not modify the terms of this Protective Order without the court’s approval. 2 If the parties agree to a potential modification, they shall submit a stipulation and proposed order 3 for the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of 5 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: April 12, 2021 /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 2 EXHIBIT A 3 DECLARATION AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 4 I, _______________________________ [print or type full name], of 5 ____________________ [print or type full address], declare that I have read, in its entirety, and 6 understand the Stipulated Protective Order that was issued by the U.S. District Court for the Eastern 7 District of California on ___________________ [date] in the case of Ryan Smith v. Superior Farms, 8 Case No. 2:20-cv-01778-KJM-DB. I agree to comply with and to be bound by all of the terms of 9 this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose, in any manner, any information or item that is subject to this Stipulated Protective 12 Order 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 U.S. District Court for the Eastern District 14 of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 15 enforcement proceedings occur after termination of this action. 16 17 Date: ____________________________ 18 19 City and State where sworn and signed: __________________________ 20 21 Printed Name: _________________________________ 22 23 Signature: ___________________________________ 24 25 26 27