Lopez v. American Fire and Casualty Co. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALICIA LOPEZ, Case No. 1:20-cv-01418-NONE-SAB 12 Plaintiff, ORDER ENTERING STIPULATED PROTECTIVE ORDER 13 v. (ECF No. 20) 14 AMERICAN FIRE AND CASUALTY COMPANY, 15 Defendant. 16 17 STIPULATED PROTECTIVE ORDER 18 1. PURPOSES AND LIMITATIONS 19 Disclosure and discovery activity in this action are likely to involve production of confidential, 20 proprietary, or private information for which special protection from public disclosure and from 21 use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the 22 parties hereby stipulate to and petition the court to enter the following Stipulated Protective 23 Order. The parties acknowledge that this Order does not confer blanket protections on all 24 disclosures or responses to discovery and that the protection it affords from public disclosure and 25 use extends only to the limited information or items that are entitled to confidential treatment 26 under the applicable legal principles. The parties further acknowledge, as set forth in Section 27 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 141 sets forth the procedures that must be followed and 1 the standards that will be applied when a party seeks permission from the court to file material 2 under seal. 3 2. DEFINITIONS 4 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information 5 or items under this Order. 6 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 7 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 8 of Civil Procedure 26(c). 9 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as 10 their support staff). 11 2.4 Designating Party: a Party or Non-Party that designates information or items that it 12 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 13 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or 14 manner in which it is generated, stored, or maintained (including, among other things, testimony, 15 transcripts, and tangible things), that are produced or generated in disclosures or responses to 16 discovery in this matter. 17 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the 18 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 19 consultant in this action. 20 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel 21 does not include Outside Counsel of Record or any other outside counsel. 22 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity 23 not named as a Party to this action. 24 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but 25 are retained to represent or advise a party to this action and have appeared in this action on 26 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 27 2.10 Party: any party to this action, including all of its officers, directors, employees, 1 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in 2 this action. 3 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., 4 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 5 storing, or retrieving data in any form or medium) and their employees and subcontractors. 6 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 7 “CONFIDENTIAL.” 8 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 9 Producing Party. 10 3. SCOPE 11 The protections conferred by this Stipulation and Order cover not only Protected Material (as 12 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 13 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 14 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 15 However, the protections conferred by this Stipulation and Order do not cover the following 16 information: (a) any information that is in the public domain at the time of disclosure to a 17 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 18 a result of publication not involving a violation of this Order, including becoming part of the 19 public record through trial or otherwise; and (b) any information known to the Receiving Party 20 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 21 obtained the information lawfully and under no obligation of confidentiality to the Designating 22 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 23 4. DURATION 24 Even after final disposition of this litigation, the confidentiality obligations imposed by this 25 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 26 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 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 Non- 5 Party that designates information or items for protection under this Order must take care to limit 6 any such designation to specific material that qualifies under the appropriate standards. The 7 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, 9 documents, items, or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this Order. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to 12 be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process or to impose unnecessary expenses and 14 burdens on other parties) expose the Designating Party to sanctions. 15 If it comes to a Designating Party’s attention that information or items that it designated for 16 protection do not qualify for protection, that Designating Party must promptly notify all other 17 Parties that it is withdrawing the mistaken designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 19 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 20 or Discovery Material that qualifies for protection under this Order must be clearly so designated 21 before the material is disclosed or produced. 22 Designation in conformity with this Order requires: 23 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 24 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 25 legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or 26 portions of the material on a page qualifies for protection, the Producing Party also must clearly 27 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 1 A Party or Non-Party that makes original documents or materials available for inspection need 2 not designate them for protection until after the inspecting Party has indicated which material it 3 would like copied and produced. During the inspection and before the designation, all of the 4 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 5 Party has identified the documents it wants copied and produced, the Producing Party must 6 determine which documents, or portions thereof, qualify for protection under this Order. Then, 7 before producing the specified documents, the Producing Party must affix the 8 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 9 portions of the material on a page qualifies for protection, the Producing Party also must clearly 10 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 11 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 12 Designating Party identify on the record, before the close of the deposition, hearing, or other 13 proceeding, all protected testimony. 14 (c) for information produced in some form other than documentary and for any other tangible 15 items, that the Producing Party affix in a prominent place on the exterior of the container or 16 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 17 portion or portions of the information or item warrant protection, the Producing Party, to the 18 extent practicable, shall identify the protected portion(s). 19 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 20 qualified information or items does not, standing alone, waive the Designating Party’s right to 21 secure protection under this Order for such material. Upon timely correction of a designation, the 22 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 23 with the provisions of this Order. 24 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 25 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 26 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 27 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 1 challenge a confidentiality designation by electing not to mount a challenge promptly after the 2 original designation is disclosed. 3 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 4 providing written notice of each designation it is challenging and describing the basis for each 5 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 6 recite that the challenge to confidentiality is being made in accordance with this specific 7 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good 8 faith and must begin the process by conferring directly (in voice to voice dialogue; other forms 9 of communication are not sufficient) within 14 days of the date of service of notice. In 10 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 11 designation was not proper and must give the Designating Party an opportunity to review the 12 designated material, to reconsider the circumstances, and, if no change in designation is offered, 13 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 14 stage of the challenge process only if it has engaged in this meet and confer process first or 15 establishes that the Designating Party is unwilling to participate in the meet and confer process in 16 a timely manner. 17 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 18 the Designating Party shall file and serve a motion to retain confidentiality under within 21 days 19 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 20 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 21 accompanied by a competent declaration affirming that the movant has complied with the meet 22 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 23 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 24 shall automatically waive the confidentiality designation for each challenged designation. In 25 addition, the Challenging Party may file a motion challenging a confidentiality designation at 26 any time if there is good cause for doing so, including a challenge to the designation of a 27 deposition transcript or any portions thereof. Any motion brought pursuant to this provision must 1 be accompanied by a competent declaration affirming that the movant has complied with the 2 meet and confer requirements imposed by the preceding paragraph. 3 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 4 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 6 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 7 file a motion to retain confidentiality as described above, all parties shall continue to afford the 8 material in question the level of protection to which it is entitled under the Producing Party’s 9 designation 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 or 12 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 13 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 14 to the categories of persons and under the conditions described in this Order. When the litigation 15 has been terminated, a Receiving Party must comply with the provisions of section 13 below 16 (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a location and in a 18 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 ordered by the 20 court or permitted in writing by the Designating Party, a Receiving Party may disclose any 21 information or item designated “CONFIDENTIAL” only to: 22 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said 23 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 24 this 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 Receiving Party to 27 whom disclosure is reasonably necessary for this litigation and who have signed the 1 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably 2 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be 3 Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 6 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 necessary 9 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 10 otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 11 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 12 bound by the court reporter and may not be disclosed to anyone except as permitted under this 13 Stipulated Protective Order. 14 (g) the author or recipient of a document containing the information or a custodian or other 15 person who otherwise possessed or knew the information. 16 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 17 OTHER LITIGATION 18 8.1 If a Party is served with a subpoena or a court order issued in other litigation that 19 compels disclosure of any information or items designated in this action as 20 “CONFIDENTIAL,” that Party must: 21 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of 22 the subpoena or court order; 23 (b) promptly notify in writing the party who caused the subpoena or order to issue in the other 24 litigation that some or all of the material covered by the subpoena or order is subject to this 25 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 26 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating 27 Party whose Protected Material may be affected. 1 8.2 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 4 order issued, unless the Party has obtained the Designating Party’s permission. The 5 Designating Party shall bear the burden and expense of seeking protection in that 6 court of its confidential material – and nothing in these provisions should be 7 construed as authorizing or encouraging a Receiving Party in this action to disobey a 8 lawful directive from another court. 9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN 10 THIS LITIGATION 11 9.1 The terms of this Order are applicable to information produced by a Non-Party in this 12 action and designated as “CONFIDENTIAL.” Such information produced by Non- 13 Parties in connection with this litigation is protected by the remedies and relief 14 provided by this Order. Nothing in these provisions should be construed as 15 prohibiting a Non-Party from seeking additional protections. 16 9.2 In the event that a Party is required, by a valid discovery request, to produce a Non- 17 Party’s confidential information in its possession, and the Party is subject to an agreement with 18 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 19 (a) promptly notify in writing the Requesting Party and the Non-Party that some or all of the 20 information requested is subject to a confidentiality agreement with a Non-Party; 21 (b) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 22 litigation, the relevant discovery request(s), and a reasonably specific description of the 23 information requested; and 24 (c) make the information requested available for inspection by the Non-Party. 25 9.3 If the Non-Party fails to object or seek a protective order from this court within 14 days 26 of receiving the notice and accompanying information, the Receiving Party may produce the 27 Non-Party’s confidential information responsive to the discovery request. If the Non-Party 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 10.1If 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 8 the 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 13 PROTECTED MATERIAL 14 11.1When 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 19 of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of 20 disclosure of a communication or information covered by the attorney-client privilege or 21 work product protection, the parties may incorporate their agreement in the stipulated 22 protective order 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 seek its 25 modification by the court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 27 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 or a 4 court order secured after appropriate notice to all interested persons, a Party may not file in the 5 public record in this action any Protected Material. A Party that seeks to file under seal any 6 Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed 7 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 8 issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request 9 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 10 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected 11 Material under seal pursuant to Civil Local Rule 141 is denied by the court, then the Receiving 12 Party may file the information in the public record unless otherwise instructed by the court. 13 13. FINAL DISPOSITION 14 13.1Within 60 days after the final disposition of this action, as defined in paragraph 4, 15 each Receiving Party must return all Protected Material to the Producing Party or 16 destroy such material. As used in this subdivision, “all Protected Material” includes 17 all copies, abstracts, compilations, summaries, and any other format reproducing or 18 capturing any of the Protected Material. Whether the Protected Material is returned 19 or destroyed, the Receiving Party must submit a written certification to the Producing 20 Party (and, if not the same person or entity, to the Designating Party) by the 60 day 21 deadline that (1) identifies (by category, where appropriate) all the Protected 22 Material that was returned or destroyed and (2) affirms that the Receiving Party has 23 not retained any copies, abstracts, compilations, summaries or any other format 24 reproducing or capturing any of the Protected Material. Notwithstanding this 25 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 26 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 27 deposition and trial exhibits, expert reports, attorney work product, and consultant 1 such archival copies that contain or constitute Protected Material remain subject to 2 this Protective Order as set forth in Section 4 (DURATION). 3 IT IS SO STIPULATED. 4 5 Dated: July 16, 2021 MERLIN LAW GROUP 6 7 8 9 10 By: /s/ Courtney Abrams 11 MICHAEL J. PONZO 12 COURTNEY ABRAMS 13 VICTOR JACOBELLIS 14 DANIEL J. VEROFF 15 Attorneys for Plaintiff ALICIA LOPEZ, DBA 16 PLAZA SAN MIGUEL 17 18 Dated: July 16, 2021 Maynard Cooper & Gale, LLP 19 20 21 22 23 By: /s/ Norman Lau 24 NICHOLAS J. BOOS 25 NORMAN LAU 26 Attorneys for Defendant AMERICAN FIRE AND 27 CASUALTY COMPANY 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 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Eastern District of California on _____________ 7 [date] in the case of Alicia Lopez dba Plaza San Miguel v. American Fire and Casualty 8 Company, case no. 1:20-CV-01418-NONE-SAB. I agree to comply with and to be bound by all 9 the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 13 of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 15 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 16 even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint ____________________________________ [print or type full name] of 18 _________________________________________ [print or type full address and telephone 19 number] as my California agent for service of process in connection with this action or any 20 proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 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 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion, Pintos v. Pacific Creditors 10 Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and 11 4. If a party’s request to file Protected Material under seal is denied by the Court, then 12 the previously filed material shall be immediately accepted by the court and 13 become information in the public record and the information will be deemed filed 14 as of the date that the request to file the Protected Information under seal was 15 made. 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: _ July 22, 2021 ; 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28