Vasquez v. O'Reilly Auto Enterprises, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WARDIA VASQUEZ, Case No. 1:21-cv-01099-DAD-SAB 12 Plaintiff, ORDER ENTERING STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 12) 14 O’REILLY AUTO ENTERPRISES, LLC, et al., 15 Defendants. 16 17 18 19 STIPULATED PROTECTIVE ORDER 20 1. PURPOSES AND LIMITATIONS 21 Disclosure and discovery activity in this action are likely to involve production of 22 confidential, proprietary, or private information for which special protection from public disclosure 23 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 24 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 25 Order. 26 2. DEFINITIONS 27 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 28 information or items under this Order. 1 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 2 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 3 of Civil Procedure 26(c). 4 2.3 Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as 5 well as their support staff). 6 2.4 Designating Party: a Party or Non-Party that designates information or items that it 7 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 8 2.5 Disclosure or Discovery Material: all items or information, regardless of the 9 medium or manner in which it is generated, stored, or maintained (including, among other things, 10 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 11 responses to discovery in this matter. 12 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 13 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 14 consultant in this action. 15 2.7 In-House Counsel: attorneys who are employees of a party to this action. In-House 16 Counsel does not include Outside Counsel of Record or any other outside counsel. 17 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 18 entity not named as a Party to this action. 19 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 20 but are retained to represent or advise a party to this action and have appeared in this action on 21 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 22 2.10 Party: any party to this action, including all of its officers, directors, employees, 23 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 24 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 25 Material in this action. 26 2.12 Professional Vendors: persons or entities that provide litigation support services 27 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 28 storing, or retrieving data in any form or medium) and their employees and subcontractors. 1 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 2 “CONFIDENTIAL.” 3 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 4 Producing Party. 5 3. SCOPE 6 The protections conferred by this Stipulation and Order cover not only Protected Material 7 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 8 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 9 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 10 Any use of Protected Material at trial shall be governed by a separate agreement or order. 11 4. DURATION 12 Even after final disposition of this litigation, the confidentiality obligations imposed by this 13 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 14 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 15 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 16 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 17 including the time limits for filing any motions or applications for extension of time pursuant to 18 applicable law. 19 5. DESIGNATING PROTECTED MATERIAL 20 5.1 Exercise of Restraint and Care in Designating Material for Protection. 21 Each Party or Non-Party that designates information or items for protection under this Order 22 must take care to limit any such designation to specific material that the designating party or non- 23 party has an articulable, good faith basis to believe that the same qualifies for protection under 24 Federal Rule of Civil Procedure 26(c). The Designating Party must designate for protection only 25 those parts of material, documents, items, or oral or written communications that qualify – so that 26 other portions of the material, documents, items, or communications for which protection is not 27 warranted are not swept unjustifiably within the ambit of this Order. 28 / / / 1 If it comes to a Designating Party’s attention that information or items that it designated for 2 protection do not qualify for protection, that Designating Party must promptly notify all other 3 Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 5 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 6 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 7 designated before the material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) for information in documentary form (e.g., paper or electronic documents, but 10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 11 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 12 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 14 A Party or Non-Party that makes original documents or materials available for inspection need not 15 designate them for protection until after the inspecting Party has indicated which material it would 16 like copied and produced. During the inspection and before the designation, all of the material 17 made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 18 identified the documents, it wants copied and produced, the Producing Party must determine which 19 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 20 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 21 that contains Protected Material. If only a portion or portions of the material on a page qualifies 22 for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 23 making appropriate markings in margins). 24 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 25 Designating Party identify on the record, before the close of the deposition, hearing, or other 26 proceeding, all protected testimony. 27 (c) for information produced in some form other than documentary and for any other 28 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 1 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 2 portion or portions of the information or item warrant protection, the Producing Party, to the extent 3 practicable, shall identify the protected portion(s). 4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 5 designate qualified information or items does not, standing alone, waive the Designating Party’s 6 right to secure protection under this Order for such material. Upon timely correction of a 7 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 8 in accordance with this Order. 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 10 6.1 Timing of Challenges. Any party or Non-Party may challenge a designation of 11 confidentiality at any time that is consistent with the Court’s Scheduling Order. 12 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 13 by providing written notice of each specific designation it is challenging and describing the basis 14 for each specific challenge. General, blanket challenges are not permitted. To avoid ambiguity as 15 to whether a challenge has been made, the written notice must recite that the challenge to 16 confidentiality is being made in accordance with this specific paragraph of the Protective Order. 17 The parties shall attempt to resolve each challenge in good faith and must begin the process by 18 conferring directly within 14 days of the date of service of notice. In conferring, the Challenging 19 Party must explain the basis for its belief that the confidentiality designation was not proper and 20 must give the Designating Party an opportunity to review the designated material, to reconsider the 21 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 22 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 23 has engaged in this meet and confer process first or establishes that the Designating Party is 24 unwilling to participate in the meet and confer process in a timely manner. 25 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 26 intervention, the Challenging Party shall file and serve a motion to challenge a specific 27 confidentiality designation within 30 days of the initial notice of challenge. Each such motion must 28 / / / 1 be accompanied by a competent declaration affirming that the movant has complied with the meet 2 and confer requirements imposed in the preceding paragraph. 3 The burden of persuasion in any such challenge proceeding shall be on the Challenging 4 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 5 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 6 All parties shall continue to afford the material in question the level of protection to which it is 7 entitled under the Producing Party’s designation until the court rules on the challenge. 8 7. ACCESS TO AND USE OF PROTECTED MATERIAL 9 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 10 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 12 the categories of persons and under the conditions described in this Order. When the litigation has 13 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 14 DISPOSITION). 15 Protected Material must be stored and maintained by a Receiving Party at a location and in 16 a secure manner that ensures that access is limited to the persons authorized under this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 18 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 19 information or item designated “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 21 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 22 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 23 attached hereto as Exhibit A; 24 (b) the officers, directors, and employees (including House Counsel) of the Receiving 25 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 26 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 28 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 1 to Be Bound” (Exhibit A); 2 (d) the court and its personnel; 3 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 4 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 5 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 7 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 8 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 9 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 10 bound by the court reporter and may not be disclosed to anyone except as permitted under this 11 Stipulated Protective Order; 12 (g) the author or recipient of a document containing the information or a custodian or 13 other person who otherwise possessed or knew the information. 14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 15 LITIGATION 16 If a Party is served with a subpoena or a court order issued in other litigation that compels 17 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 18 must: 19 (a) promptly notify in writing the Designating Party. Such notification shall include a 20 copy of the subpoena or court order; 21 (b) promptly notify in writing the party who caused the subpoena or order to issue in 22 the other litigation that some or all of the material covered by the subpoena or order is subject to 23 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 24 and 25 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 26 Designating Party whose Protected Material may be affected. 27 If the Designating Party timely seeks a protective order, the Party served with the subpoena 28 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 1 before a determination by the court from which the subpoena or order issued, unless the Party has 2 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 3 expense of seeking protection in that court of its confidential material – and nothing in these 4 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 5 disobey a lawful directive from another court. 6 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 7 LITIGATION 8 (a) The terms of this Order are applicable to information produced by a Non-Party in 9 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 10 connection with this litigation is protected by the remedies and relief provided by this Order. 11 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 12 protections. 13 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 14 Party’s confidential information in its possession, and the Party is subject to an agreement with the 15 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 16 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 17 all of the information requested is subject to a confidentiality agreement with a Non-Party; 18 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order 19 in this litigation, the relevant discovery request(s), and a reasonably specific description of the 20 information requested; and 21 (3) make the information requested available for inspection by the Non-Party. 22 (c) If the Non-Party fails to object or seek a protective order from this court within 14 23 days of receiving the notice and accompanying information, the Receiving Party may produce the 24 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 25 seeks a protective order, the Receiving Party shall not produce any information in its possession or 26 control that is subject to the confidentiality agreement with the Non-Party before a determination 27 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense 28 of seeking protection in this court of its Protected Material. 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 4 the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 6 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 7 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 8 Agreement to Be Bound” that is attached hereto as Exhibit A. 9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 14 is not intended to modify whatever procedure may be established in an e-discovery order that 15 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 16 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 17 communication or information covered by the attorney-client privilege or work product protection, 18 the parties may incorporate their agreement in the stipulated protective order. 19 12. MISCELLANEOUS 20 12.1 Relation to Any Court or Local Rules. Without a separate court order, this 21 Protective Order and the parties’ stipulation thereto does not change, amend, or circumvent any 22 court rule or local rule. 23 12.2 Right to Further Relief. Nothing in this Order abridges the right of any person to 24 seek its modification by the court in the future. 25 12.3 Modification of the Protective Order by the Court. The Court may modify the terms 26 and conditions of this Order for good cause, or in the interest of justice, or on its own order at any 27 time in these proceedings. 28 / / / 1 12.4 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 4 Party waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 6 12.5 Filing Documents Under Seal. No document shall be filed under seal unless counsel 7 secures a court order allowing the filing of a document under seal. An application to file a document 8 under seal shall be served on opposing counsel, and on the person or entity that has custody or 9 control of the document, if different from opposing counsel. If the applicable to file under seal a 10 document designated as confidential is being made by the non-designating party, then, upon 11 request, the designating party must promptly provide the applicant with the legal basis for the 12 confidential designation to include within the application. If opposing counsel, or the person or 13 entity that has custody and control of the document, wishes to oppose the application, he/she must 14 contact the chambers of the judge who will rule on the application, to notify the judge’s staff that 15 an opposition to the application will be filed. 16 13. FINAL DISPOSITION 17 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 23 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 24 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 25 abstracts, compilations, summaries or any other format reproducing or capturing any of the 26 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 27 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 28 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 1 and expert work product, even if such materials contain Protected Material. Any such archival 2 copies that contain or constitute Protected Material remain subject to this Protective Order as set 3 forth in Section 4. 4 14. AGREEMENT TO BE BOUND 5 The Parties hereby agree to be bound by the terms of this Stipulated Protective Order 6 pending the entry of the order by Judge Stanley A. Boone. Should Judge Boone not enter the 7 requested order, for any reason, the Parties are no longer bound by the terms of this Stipulated 8 Protective Order. Should Judge Boone enter a modified Stipulated Protective Order, the Judge’s 9 order will be controlling from the date of entry forward. 10 EXHIBIT A 11 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 12 I, _____________________________ [print or type full name], of _________________ 13 [print or type full address], declare under penalty of perjury that I have read in its entirety and 14 understand the Stipulated Protective Order that was issued by the United States District Court for 15 the Eastern District of California on _______________ in the case of Wardia Vasquez v O’Reilly 16 Auto Enterprises, LLC, et al, Case No. 1:21-CV-01099-DAD-SAB. I agree to comply with and to 17 be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge 18 that failure to so comply could expose me to sanctions and punishment in the nature of contempt. 19 I solemnly promise that I will not disclose in any manner any information or item that is subject to 20 this Stipulated Protective Order to any person or entity except in strict compliance with the 21 provisions of this Order. 22 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 23 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 24 even if such enforcement proceedings occur after termination of this action. 25 I hereby appoint __________________________ [print or type full name] of 26 _______________________________________ [print or type full address and telephone number] 27 as my California agent for service of process in connection with this action or any proceedings 28 related to enforcement of this Stipulated Protective Order. 1 Date: ________________________________________________________________________ 2 City and State where sworn and signed: _____________________________________________ 3 Printed name: _________________________________________________________________ 4 Signature: ____________________________________________________________________ 5 / / / 6 / / / 7 / / / 8 / / / 9 / / / 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is ENTERED; 4 2. The parties are advised that pursuant to the Local Rules of the United States 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; 7 3. The party making a request to file documents under seal shall be required to show 8 either good cause or compelling reasons to seal the documents, depending on the 9 type of filing, Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 10 2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 11 2016); and 12 4. If a party’s request to file Protected Material under seal is denied by the Court, then 13 the previously filed material shall be immediately accepted by the court and become 14 information in the public record and the information will be deemed filed as of the 15 date that the request to file the Protected Information under seal was made. 16 7 IT IS SO ORDERED. 2 ee 1g | Dated: _ October 6, 2021 OF 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12