Mercer v. Ball Metalpack (Oakdale) LLC ( 2022 )

1 Erika L. Shao (SBN: 265917) eshao@grsm.com 2 WANJA S. GUY (SBN: 275734) wguy@grsm.com 3 GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd floor 4 Los Angeles, CA 90071 Telephone: (213) 576-5034 5 Facsimile: (213) 680-4470 6 Attorneys for Defendant BALL METALPACK LLC (erroneously named and served as BALL 7 METALPACK (OAKDALE), LLC) 8 [Additional counsel listed on the following page] 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 KIMBERLY MERCER ) CASE NO. 1:21-CV-01742-DAD- ) BAM 14 Plaintiff, ) ) Hon. Judge: Dale A. Drozd 15 vs. ) CTRM: #5 (7th Floor) ) 16 BALL METALPACK (OAKDALE), STIPULATED PROTECTIVE ) LLC, ORDER 17 BALL METALPACK, LLC, ) BALL CORPORATION, and ) 18 DOES 1 through 100, inclusive, ) ) 19 Defendants. ) ) 20 ) 21 22 23 24 25 26 27 1 Jason A. Geller (SBN 168149) E-Mail: jgeller@fisherphillips.com 2 Juan C. Araneda (SBN 213041) E-Mail: jaraneda@fisherphillips.com 3 Aaron M. Cargain (SBN 281336) E-Mail: acargain@fisherphillips.com 4 FISHER & PHILLIPS LLP One Embarcadero Center, Suite 2050 5 San Francisco, California 94111 Telephone: (415) 490-9000 6 Facsimile: (415) 490-9001 7 Attorneys for Defendant BALL CORPORATION 8 9 Phil Horowitz (SBN: 111624) phil@philhorowitz.com 10 Chris Banks (SBN: 279895) chris@philhorowitz.com 11 LAW OFFICES OF PHIL HOROWITZ 428 13th Street, 11th Floor 12 Oakland, CA 94612 Telephone: (415) 391-0111 13 Attorneys for Plaintiff 14 Kimberly Mercer 15 16 17 18 19 20 21 22 23 24 25 26 27 1 The parties in the above-captioned matter, through their counsel, jointly 2 stipulate to the entry of this Proposed Protective Order: 3 1. A. PURPOSES AND LIMITATIONS 4 Discovery in this action is likely to involve production of confidential, 5 proprietary, or private information for which special protection from public 6 disclosure and from use for any purpose other than prosecuting this litigation may 7 be warranted. Accordingly, the parties acknowledge that this Order does not 8 confer blanket protections on all disclosures or responses to discovery and that the 9 protection it affords from public disclosure and use extends only to the limited 10 information or items that are entitled to confidential treatment under the applicable 11 legal principles. The parties further acknowledge, as set forth in Section 12.3, 12 below, that this Order does not entitle them to file confidential information under 13 seal. Rather, when the parties seek permission from the court to file material under 14 seal, the parties must comply with Civil Local Rule 141 and with any pertinent 15 orders of the assigned District Judge and Magistrate Judge. 16 B. GOOD CAUSE STATEMENT 17 During the course of discovery it may be necessary to disclose certain 18 confidential information relating to the subject matter of this action. Such 19 confidential and proprietary materials and information consist of, among other 20 things, confidential business or financial information, information regarding 21 confidential business practices, or other confidential research, development, or 22 commercial information, otherwise generally unavailable to the public, or which 23 may be privileged or otherwise protected from disclosure under state or federal 24 statutes, court rules, case decisions, or common law. Accordingly, to expedite the 25 flow of information, to facilitate the prompt resolution of disputes over 26 confidentiality of discovery materials, to adequately protect information the parties 27 are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to 1 address their handling at the end of the litigation, and serve the ends of justice, a 2 protective order for such information is justified in this matter. It is the intent of the 3 parties that information will not be designated as confidential for tactical reasons 4 and that nothing be so designated without a good faith belief that it has been 5 maintained in a confidential, non-public manner, and there is good cause why it 6 should not be part of the public record of this case. 7 Accordingly, the parties respectfully submit that there is good cause for the 8 entry of this Protective Order. 9 2. DEFINITIONS 10 2.1 Action: The instant action: Kimberly Mercer v. Ball MetalPack 11 (Oakdale), LLC., et al, Case No. 1:21-CV-01742-DAD-BAM. 12 2.2 Challenging Party: a Party or Non-Party that challenges the 13 designation of information or items under this Order. 14 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 15 how it is generated, stored or maintained) or tangible things that qualify for 16 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 17 the Good Cause Statement. 18 2.4 Counsel: Counsel of Record and House Counsel (as well as their 19 support staff). 20 2.5 Designating Party: a Party or Non-Party that designates information 21 or items that it produces in disclosures or in responses to discovery as 22 “CONFIDENTIAL.” 23 2.6 Disclosure or Discovery Material: all items or information, regardless 24 of the medium or manner in which it is generated, stored, or maintained (including, 25 among other things, testimony, transcripts, and tangible things), that are produced 26 or generated in disclosures or responses to discovery in this matter. 27 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to 1 serve as an expert witness or as a consultant in this Action. 2 2.8 House Counsel: attorneys who are employees of a party to this 3 Action. House Counsel does not include Outside Counsel of Record or any other 4 outside counsel. 5 2.9 Non-Party: any natural person, partnership, corporation, association, 6 or other legal entity not named as a Party to this action. 7 2.10 Outside Counsel of Record: attorneys who are not employees of a 8 party to this Action but are retained to represent or advise a party to this Action 9 and have appeared in this Action on behalf of that party or are affiliated with a law 10 firm which has appeared on behalf of that party, and includes support staff. 11 2.11 Party: any party to this Action, including all of its officers, directors, 12 employees, consultants, retained experts, and Outside Counsel of Record (and their 13 support staffs). 14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 15 Discovery Material in this Action. 16 2.13 Professional Vendors: persons or entities that provide litigation 17 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 18 demonstrations, and organizing, storing, or retrieving data in any form or medium) 19 and their employees and subcontractors. 20 2.14 Protected Material: any Disclosure or Discovery Material that is 21 designated as “CONFIDENTIAL.” 22 2.15 Receiving Party: a Party that receives Disclosure or Discovery 23 Material from a Producing Party. 24 3. SCOPE 25 The protections conferred by this Order cover not only Protected Material 26 (as defined above), but also (1) any information copied or extracted from Protected 27 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any deposition testimony, conversations, or presentations by 1 Parties or their Counsel that might reveal Protected Material, other than during a 2 court hearing or at trial. 3 Any use of Protected Material during a court hearing or at trial shall be 4 governed by the orders of the presiding judge. This Order does not govern the use 5 of Protected Material during a court hearing or at trial. 6 4. DURATION 7 Even after final disposition of this litigation, the confidentiality obligations 8 imposed by this Order shall remain in effect until a Designating Party agrees 9 otherwise in writing or a court order otherwise directs. Final disposition shall be 10 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 11 with or without prejudice; and (2) final judgment herein after the completion and 12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 13 including the time limits for filing any motions or applications for extension of 14 time pursuant to applicable law. 15 5. DESIGNATING PROTECTED MATERIAL 16 5.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or Non-Party that designates information or items for protection under 18 this Order must take care to limit any such designation to specific material that 19 qualifies under the appropriate standards. The Designating Party must designate for 20 protection only those parts of material, documents, items, or oral or written 21 communications that qualify so that other portions of the material, documents, 22 items, or communications for which protection is not warranted are not swept 23 unjustifiably within the ambit of this Order. 24 Mass, indiscriminate, or routinized designations are prohibited. Designations 25 that are shown to be clearly unjustified or that have been made for an improper 26 purpose (e.g., to unnecessarily encumber the case development process or to 27 impose unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions. 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions), that the Producing Party affix 12 at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 13 legend”), to each page that contains protected material. If only a portion or 14 portions of the material on a page qualifies for protection, the Producing Party also 15 must clearly identify the protected portion(s) (e.g., by making appropriate 16 markings in the margins). 17 A Party or Non-Party that makes original documents available for inspection 18 need not designate them for protection until after the inspecting Party has indicated 19 which documents it would like copied and produced. During the inspection and 20 before the designation, all of the material made available for inspection shall be 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 22 documents it wants copied and produced, the Producing Party must determine 23 which documents, or portions thereof, qualify for protection under this Order. 24 Then, before producing the specified documents, the Producing Party must affix 25 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 26 only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 1 (b) for testimony given in depositions that the Designating Party identifies 2 on the record, before the close of the deposition as protected testimony. 3 (c) for information produced in some form other than documentary and for 4 any other tangible items, that the Producing Party affix in a prominent place on the 5 exterior of the container or containers in which the information is stored the legend 6 “CONFIDENTIAL.” If only a portion or portions of the information warrants 7 protection, the Producing Party, to the extent practicable, shall identify the 8 protected portion(s). 9 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 10 failure to designate qualified information or items does not, standing alone, waive 11 the Designating Party’s right to secure protection under this Order for such 12 material. Upon timely correction of a designation, the Receiving Party must make 13 reasonable efforts to assure that the material is treated in accordance with the 14 provisions of this Order. 15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 17 designation of confidentiality at any time that is consistent with the Court’s 18 Scheduling Order. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 20 resolution process under Local Rule 251 et seq. 21 6.3 The burden of persuasion in any such challenge proceeding shall be 22 on the Designating Party. Frivolous challenges, and those made for an improper 23 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 24 parties) may expose the Challenging Party to sanctions. Unless the Designating 25 Party has waived or withdrawn the confidentiality designation, all parties shall 26 continue to afford the material in question the level of protection to which it is 27 entitled under the Producing Party’s designation until the Court rules on the challenge. 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is 3 disclosed or produced by another Party or by a Non-Party in connection with this 4 Action only for prosecuting, defending, or attempting to settle this Action. Such 5 Protected Material may be disclosed only to the categories of persons and under 6 the conditions described in this Order. When the Action has been terminated, a 7 Receiving Party must comply with the provisions of Section 13 below. 8 Protected Material must be stored and maintained by a Receiving Party at a 9 location and in a secure manner that ensures that access is limited to the persons 10 authorized under this Order. 11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 12 otherwise ordered by the court or permitted in writing by the Designating Party, a 13 Receiving Party may disclose any information or item designated 14 “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 16 as employees of said Outside Counsel of Record to whom it is reasonably 17 necessary to disclose the information for this Action; 18 (b) the officers, directors, and employees (including House Counsel) of the 19 Receiving Party to whom disclosure is reasonably necessary for this Action; 20 (c) Experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this Action and who have signed the 22 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 (d) the court and its personnel; 24 (e) court reporters and their staff; 25 (f) professional jury or trial consultants, mock jurors, and Professional 26 Vendors to whom disclosure is reasonably necessary for this Action and who have 27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 1 custodian or other person who otherwise possessed or knew the information; 2 (h) during their depositions, witnesses, and attorneys for witnesses, in the 3 Action to whom disclosure is reasonably necessary provided: (1) the deposing 4 party requests that the witness sign the “Acknowledgment and Agreement to Be 5 Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to 6 keep any confidential information unless they sign the “Acknowledgment and 7 Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the 8 Designating Party or ordered by the court. Pages of transcribed deposition 9 testimony or exhibits to depositions that reveal Protected Material may be 10 separately bound by the court reporter and may not be disclosed to anyone except 11 as permitted under this Protective Order; and 12 (i) any mediator or settlement officer, and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions. 14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 15 IN OTHER LITIGATION 16 If a Party is served with a subpoena or a court order issued in other litigation 17 that compels disclosure of any information or items designated in this Action as 18 “CONFIDENTIAL,” that Party must: 19 (a) promptly notify in writing the Designating Party. Such notification shall 20 include a copy of the subpoena or court order unless prohibited by law; 21 (b) promptly notify in writing the party who caused the subpoena or order to 22 issue in the other litigation that some or all of the material covered by the subpoena 23 or order is subject to this Protective Order. Such notification shall include a copy 24 of this Protective Order; and 25 (c) cooperate with respect to all reasonable procedures sought to be pursued 26 by the Designating Party whose Protected Material may be affected. 27 If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in 1 this action as “CONFIDENTIAL” before a determination by the court from which 2 the subpoena or order issued, unless the Party has obtained the Designating Party’s 3 permission, or unless otherwise required by the law or court order. The 4 Designating Party shall bear the burden and expense of seeking protection in that 5 court of its confidential material and nothing in these provisions should be 6 construed as authorizing or encouraging a Receiving Party in this Action to 7 disobey a lawful directive from another court. 8 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 9 PRODUCED IN THIS LITIGATION 10 (a) The terms of this Order are applicable to information produced by a 11 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 12 produced by Non-Parties in connection with this litigation is protected by the 13 1. remedies and relief provided by this Order. Nothing in these provisions should 14 be construed as prohibiting a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery request, to 16 produce a Non-Party’s confidential information in its possession, and the Party is 17 subject to an agreement with the Non-Party not to produce the Non-Party’s 18 confidential information, then the Party shall: 19 (1) promptly notify in writing the Requesting Party and the Non- 20 Party that some or all of the information requested is subject to a confidentiality 21 agreement with a Non-Party; 22 (2) promptly provide the Non-Party with a copy of the Protective 23 Order in this Action, the relevant discovery request(s), and a reasonably specific 24 description of the information requested; and 25 (3) make the information requested available for inspection by the 26 Non-Party, if requested. 27 (c) If a Non-Party represented by counsel fails to commence the process called for by Local Rules 251, et seq. within 14 days of receiving the notice and 1 accompanying information or fails contemporaneously to notify the Receiving 2 Party that it has done so, the Receiving Party may produce the Non-Party’s 3 confidential information responsive to the discovery request. If an unrepresented 4 Non-Party fails to seek a protective order from this court within 14 days of 5 receiving the notice and accompanying information, the Receiving Party may 6 produce the Non-Party’s confidential information responsive to the discovery 7 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 8 not produce any information in its possession or control that is subject to the 9 confidentiality agreement with the Non-Party before a determination by the court 10 unless otherwise required by the law or court order. Absent a court order to the 11 contrary, the Non-Party shall bear the burden and expense of seeking protection in 12 this court of its Protected Material. 13 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 14 If a Receiving Party learns that, by inadvertence or otherwise, it has 15 disclosed Protected Material to any person or in any circumstance not authorized 16 under this Protective Order, the Receiving Party must immediately (a) notify in 17 writing the Designating Party of the unauthorized disclosures, (b) use its best 18 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 19 person or persons to whom unauthorized disclosures were made of all the terms of 20 this Order, and (d) request such person or persons to execute the 21 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 22 A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a Producing Party gives notice to Receiving Parties that certain 26 inadvertently produced material is subject to a claim of privilege or other 27 protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 1 whatever procedure may be established in an e-discovery order that provides for 2 production without prior privilege review. Pursuant to Federal Rule of Evidence 3 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 4 of a communication or information covered by the attorney-client privilege or 5 work product protection, the parties may incorporate their agreement into this 6 Protective Order. 7 12. MISCELLANEOUS 8 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 9 person to seek its modification by the Court in the future. 10 12.2 Right to Assert Other Objections. No Party waives any right it 11 otherwise would have to object to disclosing or producing any information or item 12 on any ground not addressed in this Protective Order. Similarly, no Party waives 13 any right to object on any ground to use in evidence of any of the material covered 14 by this Protective Order. 15 12.3 Filing Protected Material. A Party that seeks to file under seal any 16 Protected Material must comply with Civil Local Rule 141 and with any pertinent 17 orders of the assigned District Judge and Magistrate Judge. If a Party's request to 18 file Protected Material under seal is denied by the court, then the Receiving Party 19 may file the information in the public record unless otherwise instructed by the 20 court. 21 13. FINAL DISPOSITION 22 After the final disposition of this Action, as defined in Section 4, within 60 23 days of a written request by the Designating Party, each Receiving Party must 24 return all Protected Material to the Producing Party or destroy such material. As 25 used in this subdivision, “all Protected Material” includes all copies, abstracts, 26 compilations, summaries, and any other format reproducing or capturing any of the 27 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if 1 not the same person or entity, to the Designating Party) by the 60 day deadline that 2 (1) identifies (by category, where appropriate) all the Protected Material that was 3 returned or destroyed and (2) affirms that the Receiving Party has not retained any 4 copies, abstracts, compilations, summaries or any other format reproducing or 5 capturing any of the Protected Material. Notwithstanding this provision, Counsel 6 are entitled to retain an archival copy of all pleadings, motion papers, trial, 7 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 8 and trial exhibits, expert reports, attorney work product, and consultant and expert 9 work product, even if such materials contain Protected Material. Any such archival 10 copies that contain or constitute Protected Material remain subject to this 11 Protective Order as set forth in Section 4. 12 14. Any violation of this Order may be punished by any and all appropriate 13 measures including, without limitation, contempt proceedings and/or monetary 14 sanctions. 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: 16 Dated: March 23, 2022 GORDON REES SCULLY MANSUKHANI, LLP 17 18 By: /s/ Wanja S. Guy 19 Erika L. Shao Wanja S. Guy 20 Attorneys for Defendant 21 BALL METALPACK LLC 22 Dated: March 23, 2022 FISHER & PHILLIPS, LLP 23 By: /s/ Aaron M. Cargain 24 Jason A. Geller 25 Juan C. Araneda Aaron M. Cargain 26 Attorneys for Defendant 27 BALL CORPORATION 1 Dated: March 23, 2022 LAW OFFICES OF PHIL HOROWITZ 2 By: /s/ Phil Horowitz 3 Phil Horowitz 4 Attorneys for Plaintiff KIMBERLY MERCER 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 6 Order that was issued by the United States District Court for the Eastern District of 7 California on [date] in the case of __________________________ [insert formal 8 name of the case and the number and initials assigned to it by the court]. I agree to 9 comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. I further agree to submit to the jurisdiction of the United 15 States District Court for the Eastern District of California for the purpose of 16 enforcing the terms of this Stipulated Protective Order, even if such enforcement 17 proceedings occur after termination of this action. I hereby appoint 18 ____________________________________________ [print or type full name] of 19 __________________________ [print or type full address and telephone number] 20 ______________________________________ as my California agent for service 21 of process in connection with this action or any proceedings related to the 22 enforcement of this Stipulated Protective Order. 23 Date: ____________________________________________ 24 City and State where sworn and signed:__________________________________ 25 Printed name: ______________________________________ 26 27 Signature: _________________________________________ 1 ORDER 2 Based on the stipulation and finding good cause, the Court adopts the stipulated 3 protective order. The parties are advised that pursuant to the Local Rules of the United States 4 District Court, Eastern District of California, any documents subject to the protective order to be 5 filed under seal must be accompanied by a written request which complies with Local Rule 141 6 prior to sealing. The party making a request to file documents under seal shall be required to 7 show good cause for documents attached to a non-dispositive motion or compelling reasons for 8 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 9 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the 10 party shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored 11 to protect only the information that is confidential or was deemed confidential. 12 Additionally, the parties shall consider resolving any dispute arising under the protective 13 order according to the Court’s informal discovery dispute procedure. 14 IT IS SO ORDERED. 15 16 Dated: March 23, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27