Dailey v. LinkUs Enterprises, LLC ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 JESSICA DAILEY, Case No. 1: 20-cv-01407-AWI-SAB 11 Plaintiff, ORDER ENTERING STIPULATED 12 PROTECTIVE ORDER v. 13 (ECF No. 42) LINKUS ENTERPRISES, LLC, 14 Defendant. 15 16 STIPULATED PROTECTIVE ORDER 17 1. PURPOSES AND LIMITATIONS 18 Disclosure and discovery activity in this action involve production of confidential, 19 proprietary, or private information for which special protection from public disclosure and from 20 use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 21 parties hereby stipulate to and petition the court to enter the following Stipulated Protective 22 Order. The parties acknowledge that this Order does not confer blanket protections on all 23 disclosures or responses to discovery and that the protection it affords from public disclosure and 24 use extends only to the limited information or items that are entitled to confidential treatment 25 under the applicable legal principles. The parties further acknowledge, as set forth in Section 26 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 27 information under seal; Federal Rules of Civil Procedure Rules 5.2 and 26, and Local Rule 141 set forth the procedures that must be followed and the standards that will be applied when a party 1 seeks permission from the court to file material under seal. 2 2. DEFINITIONS 3 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 4 information or items under this Order. 5 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 6 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 7 of Civil Procedure 26(c). 8 2.3 Counsel (without qualifier): Counsel of record for the respective Parties (as well 9 as their support staff). 10 2.4 Designating Party: a Party or Non-Party that designates information or items that 11 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 12 2.5 Disclosure or Discovery Material: all items or information, regardless of the 13 medium or manner in which it is generated, stored, or maintained (including, among other things, 14 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 15 responses to discovery in this matter. 16 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 17 to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as 18 a consultant in this action. 19 2.7 Non-Party: any natural person, partnership, corporation, association, or other 20 legal entity not named as a Party to this action. 21 2.8 Counsel of Record: attorneys at the law firms of Lang, Richert & Patch which 22 represent Plaintiff in this action and attorneys as the law firm of McCormick Barstow LLP, that 23 represent Defendant in this action. 24 2.9 Party: any party to this action, including all of its officers, directors, employees, 25 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 26 /// 27 2.10 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 1 2.11 Professional Vendors: persons or entities that provide litigation support services 2 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 3 organizing, storing, or retrieving data in any form or medium) and their employees and 4 subcontractors. 5 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 6 “CONFIDENTIAL.” The Parties agree that personnel, personal or medical information 7 (including information relating to specific employee’s leaves of absence and COVID-19 8 infection and/or test results) of third parties are and will be treated as Confidential under the 9 terms of this protective order. 10 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 11 Producing Party. 12 3. SCOPE 13 The protections conferred by this Stipulation and Order cover not only Protected Material 14 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 15 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 16 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 17 However, the protections conferred by this Stipulation and Order do not cover the following 18 information: (a) any information that is in the public domain at the time of disclosure to a 19 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 20 a result of publication not involving a violation of this Order, including becoming part of the 21 public record through trial or otherwise; and (b) any information known to the Receiving Party 22 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 23 obtained the information lawfully and under no obligation of confidentiality to the Designating 24 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 25 /// 26 4. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations imposed by 1 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 2 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 3 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 4 action, including the time limits for filing any motions or applications for extension of time 5 pursuant to applicable law. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 8 or Non-Party that designates information or items for protection under this Order must take care 9 to limit any such designation to specific material that qualifies under the appropriate standards. 10 The Designating Party must designate for protection only those parts of material, documents, 11 items, or oral or written communications that qualify – so that other portions of the material, 12 documents, items, or communications for which protection is not warranted are not swept 13 unjustifiably within the ambit of this Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 15 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 16 unnecessarily encumber or retard the case development process or to impose unnecessary 17 expenses and burdens on other parties) expose the Designating Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it designated for 19 protection do not qualify for protection, that Designating Party must promptly notify all other 20 Parties that it is withdrawing the mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 22 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 23 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 24 designated before the material is disclosed or produced. 25 Designation in conformity with this Order requires: 26 (a) for information in documentary form (e.g., paper or electronic documents, but 27 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 1 portion or portions of the material on a page qualifies for protection, the Producing Party also 2 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 3 margins). 4 A Party or Non-Party that makes original documents or materials available for inspection 5 need not designate them for protection until after the inspecting Party has indicated which 6 material it would like copied and produced. During the inspection and before the designation, all 7 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 8 inspecting Party has identified the documents it wants copied and produced, the Producing Party 9 must determine which documents, or portions thereof, qualify for protection under this Order. 10 Then, before producing the specified documents, the Producing Party must affix the 11 “CONFIDENTIAL” term to each page that contains Protected Material. If only a portion or 12 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 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 15 Designating Party identify on the record, before the close of the deposition, hearing, or other 16 proceeding, all protected testimony. 17 (c) for information produced in some form other than documentary and for any other 18 tangible items, that the Producing Party affix in a prominent place on the exterior of the 19 container or containers in which the information or item is stored the legend 20 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 21 the Producing Party, to the extent practicable, shall identify the protected portion(s). 22 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 23 designate qualified information or items does not, standing alone, waive the Designating Party’s 24 right to secure protection under this Order for such material. Upon timely correction of a 25 designation, the Receiving Party must make reasonable efforts to assure that the material is 26 treated in accordance with the provisions of this Order. 27 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 1 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 2 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 3 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 4 challenge a confidentiality designation by electing not to mount a challenge promptly after the 5 original designation is disclosed. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 7 process by providing written notice of each designation it is challenging and describing the basis 8 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 9 notice must recite that the challenge to confidentiality is being made in accordance with this 10 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 11 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 12 forms of communication are not sufficient) within 14 days of the date of service of notice. In 13 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 14 designation was not proper and must give the Designating Party an opportunity to review the 15 designated material, to reconsider the circumstances, and, if no change in designation is offered, 16 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 17 stage of the challenge process only if it has engaged in this meet and confer process first or 18 establishes that the Designating Party is unwilling to participate in the meet and confer process in 19 a timely manner. 20 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 21 intervention, the Challenging Party shall make a request for an informal conference with the 22 assigned judge within 21 days of the initial notice of challenge or within 14 days of the Parties 23 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. If 24 the dispute cannot be resolved through an informal conference with the judge, the Challenging 25 Party may file a motion challenging a confidentiality designation if there is good cause for doing 26 so, including a challenge to the designation of a deposition transcript or any portions thereof. 27 Any motion brought pursuant to this provision must be accompanied by a competent declaration 1 preceding paragraph. 2 The burden of persuasion in any such challenge proceeding shall be on the Designating 3 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 4 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 5 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 6 participate in an informal conference with the court or by failing to oppose any motion to 7 challenge confidentiality as described above, all parties shall continue to afford the material in 8 question the level of protection to which it is entitled under the Producing Party’s designation 9 until the court rules on the challenge. 10 7. ACCESS TO AND USE OF PROTECTED MATERIAL 11 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 12 or produced by another Party or by a Non-Party in connection with this case only for 13 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 14 disclosed only to the categories of persons and under the conditions described in this Order. 15 When the litigation has been terminated, a Receiving Party must comply with the provisions of 16 section 13 below (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a location and 18 in a secure manner that ensures that access is limited to the persons authorized under this Order. 19 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 20 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 21 disclose any information or item designated “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Counsel of Record in this action, as well as employees of 23 said Counsel of Record to whom it is reasonably necessary to disclose the information for this 24 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 25 attached hereto as Exhibit A; 26 (b) the officers, directors, and employees (including House Counsel) of the 27 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 1 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 2 reasonably necessary for this litigation and who have signed the “Acknowledgment and 3 Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, 6 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 7 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 9 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 10 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 11 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 12 separately bound by the court reporter and may not be disclosed to anyone except as permitted 13 under this Stipulated Protective Order. 14 (g) the author or recipient of a document containing the information or a custodian or 15 other person who otherwise possessed or knew the information. 16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 17 LITIGATION 18 If a Party is served with a subpoena or a court order issued in other litigation that compels 19 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 20 Party must: 21 (a) promptly notify in writing the Designating Party. Such notification shall include a 22 copy of the subpoena or court order; 23 (b) promptly notify in writing the party who caused the subpoena or order to issue in 24 the other litigation that some or all of the material covered by the subpoena or order is subject to 25 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 26 and 27 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 1 If the Designating Party timely seeks a protective order, the Party served with the 2 subpoena or court order shall not produce any information designated in this action as 3 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 4 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 5 shall bear the burden and expense of seeking protection in that court of its confidential material – 6 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 7 Party in this action to disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 9 LITIGATION 10 (a) The terms of this Order are applicable to information produced by a Non-Party in 11 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 12 connection with this litigation is protected by the remedies and relief provided by this Order. 13 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 14 additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to produce a 16 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 17 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 18 (1) promptly notify in writing the Requesting Party and the Non-Party that some or 19 all of the information requested is subject to a confidentiality agreement with a Non-Party; 20 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 21 this litigation, the relevant discovery request(s), and a reasonably specific description of the 22 information requested; and 23 (3) make the information requested available for inspection by the Non-Party. 24 (c) If the Non-Party fails to object or seek a protective order from this court within 25 14 days of receiving the notice and accompanying information, the Receiving Party may produce 26 the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 27 timely seeks a protective order, the Receiving Party shall not produce any information in its 1 possession or control that is subject to the confidentiality agreement with the Non-Party before a 2 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 3 burden and expense of seeking protection in this court of its Protected Material. 4 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 6 Material to any person or in any circumstance not authorized under this Stipulated Protective 7 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 8 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 9 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 10 made of all the terms of this Order, and (d) request such person or persons to execute the 11 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 13 MATERIAL 14 When a Producing Party gives notice to Receiving Parties that certain inadvertently 15 produced material is subject to a claim of privilege or other protection, the obligations of the 16 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 17 provision is not intended to modify whatever procedure may be established in an e-discovery 18 order that provides for production without prior privilege review. Pursuant to Federal Rule of 19 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 20 communication or information covered by the attorney-client privilege or work product 21 protection, the parties may incorporate their agreement in the stipulated protective order 22 submitted to the court. 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 25 seek its modification by the court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 27 Order no Party waives any right it otherwise would have to object to disclosing or producing any 1 no Party waives any right to object on any ground to use in evidence of any of the material 2 covered by this Protective Order. 3 12.3 Filing Protected Material. Without written permission from the Designating Party 4 or a court order secured after appropriate notice to all interested persons, a Party may not file in 5 the public record in this action any Protected Material. A Party that seeks to file under seal any 6 Protected Material must comply with Federal Rules of Civil Procedure Rules 5.2 and 26, and 7 Local Rule 141. Protected Material may only be filed under seal pursuant to a court order 8 authorizing the sealing of the specific Protected Material at issue. If a Receiving Party's request 9 to file Protected Material under seal is denied by the court, then the Receiving Party may file the 10 information in the public record unless otherwise instructed by the court. 11 13. FINAL DISPOSITION 12 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 13 Receiving Party must return all Protected Material to the Producing Party or destroy such 14 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 15 compilations, summaries, and any other format reproducing or capturing any of the Protected 16 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 17 submit a written certification to the Producing Party (and, if not the same person or entity, to the 18 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 19 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 20 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 21 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 22 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 23 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 24 product, and consultant and expert work product, even if such materials contain Protected 25 Material. Any such archival copies that contain or constitute Protected Material remain subject to 26 this Protective Order as set forth in Section 4. 27 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD 1 Dated: November 5, 2021 LANG, RICHERT & PATCH 2 3 By /s/ Charles Trudrung Taylor 4 Charles Trudrung Taylor Attorneys for Plaintiff 5 JESSICA DAILEY 6 7 8 Dated: November 5, 2021 McCORMICK, BARSTOW 9 10 By /s/ Melissa K. Cerro 11 Melissa K. Cerro Christina C. Tillman 12 Attorneys for Defendants LINKUS ENTERPRISES 13 14 EXHIBIT A 15 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 16 17 I, _____________________________ [print or type full name], of _________________ 18 [print or type full address], declare under penalty of perjury that I have read in its entirety and 19 understand the Stipulated Protective Order that was issued by the United States District Court for 20 the Eastern District of California on [date] in the case of Dailey v. LinkUs Enterprises, LLC, 21 Case No. 1:20-cv-01407-AWI-SAB. I agree to comply with and to be bound by all the terms of 22 this Stipulated Protective Order and I understand and acknowledge that failure to so comply 23 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that 24 I will not disclose in any manner any information or item that is subject to this Stipulated 25 Protective Order to any person or entity except in strict compliance with the provisions of this 26 Order. 27 1 I further agree to submit to the jurisdiction of the United States District Court for the 2 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 3 Order, even if such enforcement proceedings occur after termination of this action. 4 I hereby appoint __________________________ [print or type full name] of 5 _______________________________________ [print or type full address and telephone 6 number] as my California agent for service of process in connection with this action or any 7 proceedings related to enforcement of this Stipulated Protective Order. 8 9 10 Date: ______________________________________ 11 City and State where sworn and signed: _________________________________ 12 13 Printed name: _______________________________ 14 Signature: __________________________________ 15 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / / / / 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 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal 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 14 become information in the public record and the information will be deemed filed 15 as of the date that the request to file the Protected Information under seal was 16 made. 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _November 9, 2021 _ ef UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28