Baca v. National Express Transit Corporation ( 2022 )

1 Angel R. Sevilla (State Bar No. 239072) Spencer J. Davidson (State Bar No. 281169) 2 Corina C. Gallardo (State Bar No. 331466) 3 JACKSON LEWIS P.C. 50 California Street, 9th Floor 4 San Francisco, California 94111-4615 Telephone: (415) 394-9400 5 Facsimile: (415) 394-9401 E-mail: angel.sevilla@jacksonlewis.com 6 Email: spencer.davidson@jacksonlewis.com 7 E-mail: corina.gallardo@jacksonlewis.com 8 Attorneys for Defendant NATIONAL EXPRESS TRANSIT 9 CORPORATION 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 PETER BACA, an individual, Case No. 1:22-cv-00259-ADA-BAM 14 Plaintiff, 15 [PROPOSED] STIPULATED v. PROTECTIVE ORDER 16 NATIONAL EXPRESS TRANSIT Complaint Filed: 01/27/2022 17 CORPORATION, a Delaware corporation; Date of Removal: 03/03/2022 and DOES 1 through 10, inclusive, Trial Date: 06/11/2024 18 CORPORATION, 19 Defendants. 20 21 Disclosure and discovery activity in this action are likely to involve production of 22 confidential, proprietary, or private information for which special protection from public 23 disclosure and from use for any purpose other than prosecuting this litigation may be warranted, 24 including but not limited to personal medical information. Accordingly, the parties hereby 25 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 26 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 27 discovery and that the protection it affords from public disclosure and use extends only to the 28 limited information or items that are entitled to confidential treatment under the applicable legal 1 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this 2 Stipulated Protective Order does not entitle them to file confidential information under seal, or 3 alter the procedures that must be followed and the standards that will be applied when a party 4 seeks permission from the court to file material under seal. 5 1. DEFINITIONS 6 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 7 information or items under this Order. 8 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 9 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 10 of Civil Procedure 26(c). 11 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 12 well as their support staff). 13 2.4 Designating Party: a Party or Non-Party that designates information or items that 14 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 15 2.5 Disclosure or Discovery Material: all items or information, regardless of the 16 medium or manner in which it is generated, stored, or maintained (including, among other things, 17 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 18 responses to discovery in this matter. 19 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 20 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 21 consultant in this action. 22 2.7 House Counsel: attorneys who are employees of a party to this action. House 23 Counsel does not include Outside Counsel of Record or any other outside counsel. 24 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 25 entity not named as a Party to this action. 26 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 27 action but are retained to represent or advise a party to this action and have appeared in this action 28 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 1 2.10 Party: any party to this action, including all of its officers, directors, employees, 2 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 3 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 4 Material in this action. 5 2.12 Professional Vendors: persons or entities that provide litigation support services 6 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 7 organizing, storing, or retrieving data in any form or medium) and their employees and 8 subcontractors. 9 2.13 Protected Material: any Disclosure or Discovery Material that is designated as 10 “CONFIDENTIAL.” 11 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 12 Producing Party. 13 2. SCOPE 14 The protections conferred by this Stipulation and Order cover not only Protected Material 15 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 16 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 17 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 18 However, the protections conferred by this Stipulation and Order do not cover the following 19 information: (a) any information that is in the public domain at the time of disclosure to a 20 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 21 a result of publication not involving a violation of this Order, including becoming part of the 22 public record through trial or otherwise; and (b) any information known to the Receiving Party 23 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 24 obtained the information lawfully and under no obligation of confidentiality to the Designating 25 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 26 3. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations imposed by 28 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 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 action, 4 including the time limits for filing any motions or applications for extension of time pursuant to 5 applicable law. 6 4. 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 19 for 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 28 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a 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” legend 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 container 19 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 20 portion or portions of the information or item warrant protection, the Producing Party, to the 21 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 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 28 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 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 Designating Party shall file and serve a motion to retain confidentiality within 21 22 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 23 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 24 accompanied by a competent declaration affirming that the movant has complied with the meet 25 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 26 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 27 shall automatically waive the confidentiality designation for each challenged designation. In 28 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 1 time if there is good cause for doing so, including a challenge to the designation of a deposition 2 transcript or any portions thereof. Any motion brought pursuant to this provision must be 3 accompanied by a competent declaration affirming that the movant has complied with the meet 4 and confer requirements imposed by the preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the Designating 6 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 7 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 8 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 9 file a motion to retain confidentiality as described above, all parties shall continue to afford the 10 material in question the level of protection to which it is entitled under the Producing Party’s 11 designation until the court rules on the challenge. 12 6. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 16 the categories of persons and under the conditions described in this Order. When the litigation has 17 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a location and 20 in a secure manner that ensures that access is limited to the persons authorized under this Order. 21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 22 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 23 information or item designated “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 25 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 26 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that 27 is attached hereto as Exhibit A; 28 (b) the officers, directors, and employees (including House Counsel) of the Receiving 1 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 2 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 4 reasonably necessary for this litigation and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 8 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 9 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 11 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 12 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 14 bound by the court reporter and may not be disclosed to anyone except as permitted under this 15 Stipulated Protective Order. 16 (g) the author or recipient of a document containing the information or a custodian or 17 other person who otherwise possessed or knew the information. 18 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 19 LITIGATION 20 If a Party is served with a subpoena or a court order issued in other litigation that compels 21 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 22 must: 23 (a) promptly notify in writing the Designating Party. Such notification shall include a 24 copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 26 other litigation that some or all of the material covered by the subpoena or order is subject to this 27 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 28 1 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 2 Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with the 4 subpoena or court order shall not produce any information designated in this action as 5 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 6 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 7 shall bear the burden and expense of seeking protection in that court of its confidential material – 8 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 9 Party in this action to disobey a lawful directive from another court. 10 8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 11 LITIGATION 12 (a) The terms of this Order are applicable to information produced by a Non-Party in this 13 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 14 connection with this litigation is protected by the remedies and relief provided by this Order. 15 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 16 additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 18 Party’s confidential information in its possession, and the Party is subject to an agreement with 19 the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 20 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 21 the information requested is subject to a confidentiality agreement with a Non-Party; 22 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 23 litigation, the relevant discovery request(s), and a reasonably specific description of the 24 information requested; and 25 (3) make the information requested available for inspection by the Non-Party. 26 (c) If the Non-Party fails to object or seek a protective order from this court within 14 27 days of receiving the notice and accompanying information, the Receiving Party may produce the 28 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 1 seeks a protective order, the Receiving Party shall not produce any information in its possession 2 or control that is subject to the confidentiality agreement with the Non-Party before a 3 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 4 burden and expense of seeking protection in this court of its Protected Material. 5 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 Material to any person or in any circumstance not authorized under this Stipulated Protective 8 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 9 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 10 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 11 made of all the terms of this Order, and (d) request such person or persons to execute the 12 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 13 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 14 MATERIAL 15 When a Producing Party gives notice to Receiving Parties that certain inadvertently 16 produced material is subject to a claim of privilege or other protection, the obligations of the 17 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 18 provision is not intended to modify whatever procedure may be established in an e-discovery 19 order that provides for production without prior privilege review. Pursuant to Federal Rule of 20 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 21 communication or information covered by the attorney-client privilege or work product 22 protection, the parties may incorporate their agreement in the stipulated protective order 23 submitted to the court. 24 11. MISCELLANEOUS 25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 26 seek its modification by the court in the future. 27 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 28 Order no Party waives any right it otherwise would have to object to disclosing or producing any 1 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 2 Party waives any right to object on any ground to use in evidence of any of the material covered 3 by this Protective Order. 4 12.3 Filing Protected Material. Without written permission from the Designating Party 5 or a court order secured after appropriate notice to all interested persons, a Party may not file in 6 the public record in this action any Protected Material. Protected Material may only be filed under 7 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. A 8 sealing order will issue only upon a request establishing that the Protected Material at issue is 9 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 10 Receiving Party's request to file Protected Material under seal is denied by the court, then the 11 Receiving Party may file the information in the public record unless otherwise instructed by the 12 court. 13 12. FINAL DISPOSITION 14 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 15 Receiving Party must return all Protected Material to the Producing Party or destroy such 16 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 17 compilations, summaries, and any other format reproducing or capturing any of the Protected 18 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 19 submit a written certification to the Producing Party (and, if not the same person or entity, to the 20 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 21 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 22 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 23 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 24 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 25 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 26 product, and consultant and expert work product, even if such materials contain Protected 27 Material. Any such archival copies that contain or constitute Protected Material remain subject to 28 this Protective Order as set forth in Section 4 (DURATION). 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: __December 14, 2022_____ ___/s/ Patti Mitchell ______________________ Attorneys for Plaintiff 4 5 6 DATED: _December 14, 2022________ __/s/ Spencer J. Davidson__________________ Attorneys for Defendant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on ________________ in the case of Baca v. National Express 7 Transit Corporation, Case No. 1:22-cv-00259 (DAD) (BAM). I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is subject to 11 this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 24 Printed name: _______________________________ 25 26 Signature: __________________________________ 27 28 1 ORDER 2 Having considered the Proposed Stipulated Protective Order filed on December 14, 2022, 3 and finding good cause, the Court adopts the stipulated protective order. (Doc. 14.) 4 The parties are advised that pursuant to the Local Rules of the United States District 5 Court, Eastern District of California, any documents subject to the protective order to be filed 6 under seal must be accompanied by a written request which complies with Local Rule 141 prior 7 to sealing. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a non-dispositive motion or compelling reasons for 9 documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 10 677-78 (9th Cir. 2009). Within five (5) days of any approved document filed under seal, the party 11 shall file a redacted copy of the sealed document. The redactions shall be narrowly tailored to 12 protect only the information that is confidential or was deemed confidential. 13 Additionally, the parties shall consider resolving any dispute arising under the stipulated 14 protective order according to the Court’s informal discovery dispute procedure. 15 16 17 IT IS SO ORDERED. 18 Dated: December 16, 2022 /s/ Barbara A. McAuliffe _ 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28