Will v. Quest Diagnostics Inc. ( 2022 )

2 L50A0W C aOpiFtoFlI MCEalSl, OSuFi tGe A23Y5 0C ARROLL-HARING 3 Sacramento, California 95814 (916) 443-3553 Office (24/7) 4 (916) 599-3553 Cell email: gay@carrollharinglaw.com 5 Attorney for Plaintiff 6 DENETTE WILL 7 Jonathan M. Brenner, SBN 162366 8 Alexandria M. Ordway, SBN 307535 Catherine Kang, SBN 341549 9 EPSTEIN BECKER & GREEN, P.C. 1925 Century Park East, Suite 500 10 Los Angeles, CA 90067 11 (310) 556-8861 Fax: (310) 553-2165 12 email: jbrenner@ebglaw.com; cemail@ebglaw.com email: aordway@ebglawcom 13 email: ckang@ebglaw.com 14 15 IN THE UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 18 DENETTE WILL, ) No. 2:22-cv-0454 KJM DB ) 19 Plaintiff, ) STIPULATED PROTECTIVE ORDER 20 ) v. ) 21 ) QUEST DIAGNOSTICS INCORPORATED, ) 22 doing business in California as QUEST ) DIAGNOSTICS INCORPORATED OF ) 23 NEVADA, a Nevada Corporation; QUEST ) 24 DIAGNOSTICS CLINICAL ) LABORATORIES, INC., a Delaware ) 25 Corporation; and DOES 1 through 30, ) ) 26 Defendants. ) 27 _____________________________________ ) 28 2 of confidential, proprietary, or private information for which special protection from public 3 disclosure and from use for any purpose other than prosecuting or defending litigation related to this 4 case would be warranted; 5 WHEREAS the Parties hereby stipulate to and respectfully request the Court to enter the 6 following Stipulated Protective Order; 7 WHEREAS the parties acknowledge that this Stipulated Protective Order does not confer 8 blanket protections on all disclosures or responses to discovery and that the protection it affords 9 extends only to the limited information or items that are entitled under the applicable legal principles 10 to treatment as confidential; 11 1. PROCEEDINGS AND INFORMATION GOVERNED. 12 This Stipulated Protective Order shall cover any document, information or other thing 13 furnished by any Party, or any person, including third persons, to any other Party in connection with 14 the discovery and pretrial phase of the Action. The types of discovery covered includes, but is not 15 limited to, responses to requests to produce documents or other things, responses to interrogatories, 16 responses to requests for admissions, deposition testimony and all copies, extracts, summaries, 17 compilations, designations, and portions thereof. 18 This Stipulated Protective Order does not govern proceedings during trial nor does it prohibit 19 any Party from seeking a protective order to govern proceedings during trial. The Parties reserve for 20 future agreement the procedure to be followed in using “Confidential Information” (defined below) 21 at trial, subject to approval from the Court. 22 2. DEFINITIONS. 23 2.1 Party: any party to this Action, including all of its officers, directors, employees, 24 consultants, retained Experts, and Outside Counsel (and their support staff) (more than one Party collectively referred to as “Parties”). 25 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or 26 manner generated, stored, or maintained (including, among other things, testimony, transcripts, or 27 tangible things) that are produced or generated in disclosures or responses to discovery in this matter. 28 2 Party. 3 2.4 Producing Party: a Party or non-party that produces Disclosure or Discovery Material 4 in this Action. 5 2.5 Designating Party: a Party or non-party that designates information or items that it 6 produce s in disclosures or in responses to discovery as “Confidential.” 7 2.6 Counsel: outside counsel and in-house counsel (as well as their support staffs) who 8 represent a Party. 9 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 10 litigation who has been retained by a Party or its Counsel to serve as an Expert witness or as a 11 consultant in this Action and who is not a past o r current employee of a Party or of a competitor of a 12 Party’s and who, at the time of retention, is not anticipated to become an employee of a Party or a 13 competitor of a Party. This definition includes a professional jury or trial consultant retained in 14 connection with this litigation. 15 2.8 Action: the above-captioned case and any cross-actions, designated as Denette Will v. Quest Diagnostics, Inc., et al., Case No. 2:22-CV-00454-KJM-DB. 16 3. DESIGNATION OF INFORMATION FOR PROTECTION UNDER THIS 17 STIPULATED PROTECTIVE ORDER. 18 Any Disclosure or Discovery Material produced in this Action that is reasonably believed by 19 any party to be nonpublic and to contain private, proprietary, trade secret, or other confidential 20 information protected from disclosure by applicable law may be designated as “Confidential 21 Information” as described more fully in paragraph 4, below. Such designation may be made by 22 labeling or otherwise clearly marking the material as “Confidential” in such a manner as will not 23 interfere with the legibility thereof. Multi-page documents may be marked “Confidential” on each 24 page if appropriate, “Confidential in its Entirety” on the first page, or “Confidential Per Pages 25 Marked” with “Confidential” on specific pages thereafter as appropriate. In the case of written 26 material, documents or tangible items, the designation shall be made, to the extent possible, at the 27 time the copy of the writing or thing is produced. In the case of materials produced by a non-party 28 or any other Party, the designation may be made by any Party within ninety (90) days following the 2 testimony, a Party seeking to invoke the protections of this Stipulated Protective Order shall give 3 notice thereof as set forth in paragraph 12, below. 4 4. DISCLOSURE OF CONFIDENTIAL INFORMATION. 5 Confidential Information may be disclosed and disseminated by the Receiving Party only to: 6 (a) The Parties and their Counsel, officers, directors and employees; 7 (b) The attorneys of record in the Action, and their respective associates, clerks and legal 8 assistants, and any organizations retained by such attorneys to provide litigation support services in 9 the Action and the employees of said organizations; 10 (c) Independent Consultants and Expert Witnesses retained in the Action by the attorneys 11 of record, and the employees of such consultant s and Expert witnesses who are assisting them; 12 (d) The Court and its administrative staff, including law clerks and the jury at trial (if any); 13 (e) Stenographic reporters and videographers engaged in deposition proceedings; 14 (f) Such persons as set forth in and pursuant to paragraph 10 and 12; and (g) Such other persons as hereafter may be designated by written agreement of all Parties 15 in the Action or by order of the Court, such order obtained on noticed motion (or on shortened time 16 as the Court may allow), permitting such disclosure. 17 5. UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION. 18 If a Party learns that, by inadvertence of otherwise, it or another Party has disclosed 19 Confidential Information to any person or in any circumstance not authorized under this Stipulated 20 Protective Order, that Party must immediately (a) notify in writing the Producing and/or Designating 21 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Confidential 22 Information, (c) inform the person or persons to whom unauthorized disclosures were made of all the 23 terms of this Stipulated Protective Order, and, if appropriate, (d) request such person or persons to 24 execute the “Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit A. 25 6. AGREEMENT TO COMPLY WITH STIPULATED PROTECTIVE ORDER. 26 Each person referred to in paragraph 4 hereof to whom Confidential Information is to be 27 given, shown, disclosed, made available or communicated in any way, except personnel falling 28 within paragraphs 4(a), 4(b), 4(d), or 4(f) above, shall execute an agreement, in the form attached 2 stating that he or she agrees to be bound by and fully comply with the terms of this Stipulated 3 Protective Order. Said agreement shall be retained by the attorney who procured it and, upon request 4 by a Party, be made available for inspection. 5 7. USE. 6 Except as otherwise provided by this Stipulated Protective Order or by further order of the 7 Court, documents or testimony designated as Confidential Information, and all information contained 8 therein, shall not be used for any purpose other than in connection with prosecution of the Action or 9 any other action arising out of this Action, and any appellate proceeding concerning the same.1 No 10 person who is furnished Confidential Information shall disclose or disseminate it to any person not 11 entitled under this Stipulated Protective Order t o receive and review it. 12 To the extent Confidential Information is used in an action arising out of this Action, the 13 parties shall follow the procedures that have been agreed upon or are otherwise required in such other 14 actions for filing such materials. No duplicates, copies, reproductions, or reprints of any Confidential Information, or any parts 15 thereof, shall be made unless reasonably necessary. 16 If there is a disclosure or utilization of Confidential Information in violation of the terms of 17 this Stipulated Protective Order, the Party who becomes aware of such disclosure or utilization shall 18 promptly notify the attorneys of record for the other Parties. In addition to any other remedy the 19 Court may order, the Party making the disclosure shall be obligated to take all reasonable steps to 20 limit further utilization or dissemination of Confidential Information in violation of this Stipulated 21 Protective Order. 22 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS. 23 8.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 24 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 25 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive 26 27 1 In the event a party attempts to use Confidential Information in the Action, the provisions set forth in 28 paragraph 7 shall not be construed as a waiver of objections or admission to the admissibility of that Confidential Information. 2 the original designation is disclosed. 3 8.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s 4 confidentiality designation must do so in good faith and must begin the process by conferring with 5 counsel for the Designating Party. In conferring, the challenging Party must explain the basis for its 6 belief th at the confidentiality designation was not proper and must give the Designating Party an 7 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 8 designation is offered, to explain the basis for the chosen designation. A challenging Party may 9 proceed to the next stage of the challenge process only if it has engaged in this meet and confer 10 process first. 11 8.3 Judicial Intervention. A Party th at elects to press a challenge to a confidentiality 12 designation after considering the justification offered by the Designating Party may file and serve a 13 motion under Local Rules 230 and 251 (and in compliance with Civil Local Rule 141, if applicable) 14 that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied 15 with the meet and confer requirements imposed in the preceding paragraph and that sets forth with 16 specificity the justification for the confidentiality designation that was given by the Designating Party 17 in the meet and confer dialogue. 18 9. PROCEDURES FOR FILING CONFIDENTIAL INFORMATION WITH THE 19 COURT. 20 Without written permission from the Designating Party or a court order secured after 21 appropriate notice to all interested persons, a Party may not file in the public record in this Action 22 any Confidential Information. A Party that seeks to file under seal any Confidential Information must 23 comply with Local Rule 141. 24 10. DISCLOSURE TO AUTHOR OR ADDRESSEE. 25 Nothing herein shall prohibit a Party or Party’s attorney from disclosing a document which 26 has been designated as Confidential Information to the person the document identifies as an author 27 or addressee/recipient of such document. 28 2 The restrictions on the use of Confidential Information established herein are applicable only 3 to the use by a Party of Confidential Information received from another Party or any nonparty. This 4 Stipulated Protective Order shall not restrict a Party’s use of such documents, information, and other 5 things which that Party possessed before the commencement of this Action or acquired after the 6 comme ncement of this Action through informal means not involving discovery or other compulsory 7 process. 8 12. DEPOSITIONS. 9 All deposition testimony and exhibits designated as Confidential Information shall be bound 10 in a separate transcript and/or clearly marked on each page with the notation “Confidential 11 Information.” All other copies of such transcrip ts and exhibits, to the extent they pertain to or contain 12 Confidential Information or summaries or extracts thereof, shall themselves be treated as 13 Confidential Information pursuant to the terms of this Stipulated Protective Order. 14 At the time of the taking of the deposition, any Party, Party’s attorney or third-party deponent or his or her attorney may designate any portion of the testimony as Confidential Information. 15 Additionally, Counsel may also designate the testimony as Confidential Information within ten (10) 16 business days of the date that the transcript becomes available, by providing the reporter in writing 17 with specific page and line citations for any portion of the testimony to be marked as Confidential 18 Information. 19 If any deposition is recorded via videotape, Counsel accepts responsibility for insuring that 20 Confidential Information is not disclosed to any person not entitled under this Stipulated Protective 21 Order to receive it. 22 During the deposition of a third-party witness, any Party to this proceeding may disclose 23 Confidential Information to such deponent provided that said deponent is not given a copy of any 24 document designated as Confidential Information to be taken from the place of the deposition, and 25 provided further that, unless the individual is within the scope of paragraphs 4(a), (b), (d), or (f) or 26 10, above, said deponent is advised of this Stipulated Protective Order and agrees to be so bound by 27 executing a copy of Exhibit A, attached hereto. 28 2 Any response to an interrogatory or request for admission that contains Confidential 3 Information shall be clearly designated in the response in which the Confidential Information 4 appears, and responses bearing such designations shall be segregated from non-confidential 5 responses. 6 14. NO WAIVER. 7 Neither the taking of nor the failure to take any Action to enforce the provisions of this 8 Protective Order, nor the failure to object to any designation or any such Action or omission, shall 9 constitute a waiver of any right to seek and obtain protection or relief other than as specified herein 10 of any claim or defense in the Action or any other Action including, but not limited to, the claim or 11 defense that any information is or is not privat e or proprietary to any Party, is or is not entitled to 12 particular protections, embodies trade secrets of any Party, or is not properly subject to discovery in 13 the Action. The procedures set forth herein shall not affect the rights of the Parties to object to 14 discovery, nor shall it relieve a Party of the necessity of proper response to discovery devices. 15 15. NO PROBATIVE VALUE. This Stipulated Protective Order shall not abrogate or diminish any contractual, statutory, or 16 other legal obligation or right of any Party or person with respect to any Confidential Information. 17 The fact that information is designated “Confidential Information” under this Stipulated Protective 18 Order shall not be deemed to be determinative or probative of any issue to be decided by the trier of 19 fact. This Stipulated Protective Order shall be without prejudice to the right of any Party to bring 20 before the Court the question of: (i) whether any particular material is or is not confidential; (ii) 21 whether any particular information or material is or is not entitled to a greater or lesser degree of 22 protection than provided hereunder; (iii) whether any particular information or material is or is not 23 relevant to any issue of this case, or (iv) how to provide reasonable protection for Confidential 24 Information during any trial or other public legal proceeding in this matter, provided that in doing so 25 the Party complies with the foregoing procedures. 26 Absent a stipulation of all Parties, the fact that information has been designated Confidential 27 under this Stipulated Protective Order shall not be admissible during the trial of the Action, nor shall 28 the jury be advised of such designation. The fact that any information is disclosed, used, or produced 2 before any court, agency or tribunal as evidence of or concerning whether or not such information is 3 confidential or proprietary. 4 16. RETURN OF CONFIDENTIAL INFORMATION. 5 At the conclusion of the Action, all Confidential Information and all documents which repeat 6 such inf ormation, including all copies, extracts and summaries thereof, shall, upon the request of the 7 Party furnishing such Confidential Information, be delivered to that Party. Alternatively, Counsel 8 may certify in writing to the Party furnishing the Confidential Information that all such Confidential 9 Information, together with all copies, extracts and summaries thereof, have been destroyed and that 10 no additional copies are known to exist. 11 17. COURT’S JURISDICTION. 12 The Court retains jurisdiction to make such amendments, modifications, deletions and 13 additions to this Stipulated Protective Order as the Court may from time to time deem appropriate. 14 This Stipulated Protective Order shall remain in effect for the duration of the litigation unless terminated by agreement executed by Counsel of record for the Parties or pursuant to an order of the 15 Court. The provisions of this Stipulated Protective Order regarding the use and/or disclosure of 16 Confidential Information shall survive the termination of the Action, and the Court shall retain 17 jurisdiction with respect to this Stipulated Protective Order. 18 18. ELECTRONICALLY STORED INFORMATION (“ESI”). 19 The parties do not currently anticipate that this action will involve significant ESI issues. To 20 the extent ESI issues arise, the parties agree to meet and confer regarding them prior to involving the 21 Court. 22 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 2 /Gay Carroll-Haring/ 3 4 By: _________________________________ Gay L. Carroll-Haring, Esq. 5 Attorney for Plaintiff DENETTE WILL 6 7 Dated: September 9, 2022 EPSTEIN BECKER & GREEN P.C. 8 /Jonathan M. Brenner/ 9 By: _________________________________ 10 Jonathan M. Brenner, Esq. 11 At torney for Defendants QUEST DIAGNOSTICS INCORPORATED, doing business in California as 12 QUEST DIAGNOSTICS INCORPORATED OF NEVADA, a Nevada Corporation; QUEST 13 DIAGNOSTICS CLINICAL LABORATORIES, 14 INC., a Delaware Corporation 15 16 17 CERTIFICATION 18 I, GAY CARROLL-HARING, am the ECF User whose identification and password are 19 being used to file this STIPULATED PROTECTIVE ORDER. In compliance with Local Rule 20 131(e), I hereby attest that Jonathan M. Brenner, counsel for Defendant, concurs in the contents of 21 this filing and has authorized the filing. 22 Dated: September 9, 2022 LAW OFFICES OF GAY CARROLL-HARING 23 24 /Gay L. Carroll-Haring/ By: ___________________________________ 25 Gay L. Carroll Haring, Esq. Attorney for Plaintiff DENETTE WILL 26 27 28 2 IT IS HEREBY ORDERED that the parties’ stipulation (ECF No. 11) is granted. 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 7 pursuant to this order does not automatically entitle the parties to file such a document with the 8 court under seal. Parties are advised that any request to seal documents in this district is governed 9 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a 10 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a 11 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires 12 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing, 13 the requested duration, the identity, by name or category, of persons to be permitted access to the 14 document, and 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 21 certain documents, at any court hearing or trial – such determinations will only be made by the 22 court at the hearing or trial, or upon an appropriate motion. 23 5. With respect to motions regarding any disputes concerning this protective order which 24 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 25 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte 26 basis or on shortened time. 27 //// 28 //// 2 approval. If the parties agree to a potential modification, they shall submit a stipulation and 3 proposed order for the court’s consideration. 4 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement 5 of 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: September 13, 2022 /s/ DEBORAH BARNES 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 3 I, ___________________________________________ [print or type full name], of _________ 4 _____________________________________________ [print or type full address], acknowledge 5 that I have read in its entirety and understand the Stipulated Protective order that was issued by the 6 United States District Court for the Eastern District of California on __________ 7 ______________________, in the case of Denette Will v. Quest Diagnostics, Inc., et al., Case No. 8 2:22-CV-00454-KJM-DB. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order, and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt and other relief. I solemnly promise that I will 11 not disclose in any manner any information or i tem that is subject to this Stipulated Protective Order 12 to any person or entity except in strict compliance with the provisions of this Stipulated Protective 13 Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective order, even 15 if such enforcement proceedings occur after the termination of this Action. 16 I hereby appoint ________________________________________ [print or type full name] or 17 _________________________________________________________________ [print or type full 18 address and telephone number] as my California agent for service of process in connection with this 19 Action or any proceedings related to enforcement of this Stipulated Protective Order. 20 Date: __________________________ 21 City and State where sworn and signed: ____________________________________________ 22 Printed Name: __________________________________________ 23 Signature: _____________________________________________ 24 25 26 27 28