Darren Clevenger v. Welch Foods, Inc.

Opinion

7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 DARREN CLEVENGER and DAVID CASE NO. 8:20-cv-01859-CJC-JDEx BLOOM on behalf of himself and all 12 others similarly situated, Hon. Cormac J. Carney, Judge Presiding 13 Plaintiffs,

14 v. STIPULATED PROTECTIVE 15 WELCH FOODS INC., A ORDER COOPERATIVE, THE PROMOTION 16 IN MOTION COMPANIES, INC., a Delaware Corporation, and DOES 1 17 through 25, inclusive,

18 Defendants. 19 20 Based on the parties’ Stipulation (Dkt. 45) and the Court’s independent 21 review and edit, for good cause shown, the Court finds and orders as follows. 22 I. PURPOSES AND LIMITATIONS 23 Discovery in this action is likely to involve production of confidential, 24 proprietary, or private information for which special protection from public 25 disclosure and from use for any purpose other than prosecuting or defending this 26 litigation may be warranted. Accordingly, the parties hereby stipulate to and 27 petition the Court to enter the following Stipulated Protective Order. The parties 1 or responses to discovery and that the protection it affords from public disclosure 2 and use extends only to the limited information or items that are entitled to 3 confidential treatment under the applicable legal principles. The parties further 4 acknowledge that this Stipulated Protective Order does not entitle them to file 5 confidential information under seal; Local Civil Rule 79-5 sets forth the procedures 6 that must be followed and the standards that will be applied when a party seeks 7 permission from the Court to file material under seal. 8 There is a strong presumption that the public has a right of access to judicial 9 proceedings and records in civil cases. In connection with non-dispositive motions, 10 good cause must be shown to support a filing under seal. See Kamakana v. City 11 and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. 12 Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony 13 Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective 14 orders require good cause showing), and a specific showing of good cause or 15 compelling reasons with proper evidentiary support and legal justification, must be 16 made with respect to any material that a party seeks to file under seal. The parties’ 17 mere designation of material as covered by this Order does not—without the 18 submission of competent evidence establishing that the material sought to be filed 19 under seal qualifies as confidential, privileged, or otherwise protectable— 20 constitute good cause. 21 Further, if a party requests sealing related to a dispositive motion or trial, 22 then compelling reasons, not only good cause, for the sealing must be shown, and 23 the relief sought shall be narrowly tailored to serve the specific interest to be 24 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 25 2010). For each item or type of information, document, or thing sought to be filed 26 or introduced under seal, the party seeking protection must articulate compelling 27 reasons, supported by specific facts and legal justification, for the requested sealing 1 order. Again, competent evidence supporting the application to file documents 2 under seal must be provided by declaration. 3 Any document that is not confidential, privileged, or otherwise protectable 4 in its entirety will not be filed under seal if the confidential portions can be 5 redacted. If documents can be redacted, then a redacted version for public viewing, 6 omitting only the confidential, privileged, or otherwise protectable portions of the 7 document, shall be filed. Any application that seeks to file documents under seal in 8 their entirety should include an explanation of why redaction is not feasible. 9 II. GOOD CAUSE STATEMENT 10 This action is likely to involve trade secrets and other valuable research, 11 development, commercial, financial, technical and/or proprietary information for 12 which special protection from public disclosure and from use for any purpose other 13 than prosecution of this action is warranted. Such confidential and proprietary 14 materials and information consist of, among other things, confidential business or 15 financial information, information regarding confidential business practices, or 16 other confidential research, development, or commercial information (including 17 information implicating privacy rights of third parties), information otherwise 18 generally unavailable to the public, or which may be privileged or otherwise 19 protected from disclosure under state or federal statutes, court rules, case decisions, 20 or common law. Accordingly, to expedite the flow of information, to facilitate the 21 prompt resolution of disputes over confidentiality of discovery materials, to 22 adequately protect information the parties are entitled to keep confidential, to 23 ensure that the parties are permitted necessary uses of such material in preparation 24 for trial, to address their handling at the end of the litigation, and serve the ends of 25 justice, a protective order for such information is justified in this matter. It is the 26 intent of the parties that information will not be designated as confidential for 27 tactical reasons and that nothing be so designated without a good faith belief that it 1 has been maintained in a confidential, non-public manner, and there is good cause 2 why it should not be part of the public record of this case. 3 III. DEFINITIONS 4 A. Action: Case No. SACV20-cv-01859-CJC (JDEx) 5 B. Challenging Party: A Party or Non-Party that challenges the 6 designation of information or items under this Order. 7 C. "CONFIDENTIAL" Information or Items: Information (regardless of 8 how it is generated, stored or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), and as specified 10 above in the Good Cause Statement. 11 D. Counsel: Outside Counsel of Record and House Counsel (as well as 12 their support staff). 13 E. Designating Party: A Party or Non-Party that designates information 14 or items that it produces in disclosures or in responses to discovery as 15 "CONFIDENTIAL" or "HEIGHTENED CONFIDENTIAL." 16 F. Disclosure or Discovery Material: All items or information, 17 regardless of the medium or manner in which it is generated, stored, or 18 maintained (including, among other things, testimony, transcripts, and 19 tangible things), that are produced or generated in disclosures or responses 20 to discovery in this matter. 21 G. Expert: A person with specialized knowledge or experience in a 22 matter pertinent to the litigation who has been retained by a Party or its 23 Counsel to serve as an expert witness or as a consultant in this Action. 24 H. “HEIGHTENED CONFIDENTIAL” Information or Items: 25 CONFIDENTIAL pricing and manufacturing cost information that may 26 be shown to or read by Plaintiffs, but which Plaintiffs’ counsel may not 27 give copies to Plaintiffs either by email, mail or in person. 1 I. House Counsel: Attorneys who are employees of a Party to this 2 Action. House Counsel does not include Outside Counsel of Record or any 3 other outside counsel. 4 J. Non-Party: Any natural person, partnership, corporation, 5 association, or other legal entity not named as a Party to this action. 6 K. Outside Counsel of Record: Attorneys who are not employees of a 7 Party to this Action but are retained to represent or advise a Party to this 8 Action and have appeared in this Action on behalf of that Party or are 9 affiliated with a law firm which has appeared on behalf of that Party, and 10 includes support staff. 11 K. Party: Any party to this Action, including all of its officers, 12 directors, employees, consultants, retained experts, and Outside Counsel of 13 Record (and their support staffs). 14 L. Producing Party: A Party or Non-Party that produces Disclosure 15 or Discovery Material in this Action. 16 M. Professional Vendors: Persons or entities that provide litigation 17 support services (e.g., photocopying, videotaping, translating, preparing 18 exhibits or demonstrations, and organizing, storing, or retrieving data in 19 any form or medium) and their employees and subcontractors. 20 N. Protected Material: Any Disclosure or Discovery Material that is 21 designated as "CONFIDENTIAL" or "HEIGHTENED 22 CONFIDENTIAL.” 23 O. Receiving Party: A Party that receives Disclosure or Discovery 24 Material from a Producing Party. 25 IV. SCOPE 26 A. The protections conferred by this Stipulation and Order cover not 27 only Protected Material (as defined above), but also (1) any information 1 summaries, or compilations of Protected Material; and (3) any deposition 2 testimony, conversations, or presentations by Parties or their Counsel that 3 might reveal Protected Material. 4 B. Any use of Protected Material at trial shall be governed by the orders 5 of the trial judge. This Order does not govern the use of Protected Material 6 at trial. 7 V. DURATION 8 Even after final disposition of this litigation, the confidentiality obligations 9 imposed by this Order shall remain in effect until a Designating Party agrees 10 otherwise in writing or a court order otherwise directs. Final disposition shall be 11 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 12 with or without prejudice; or (2) final judgment herein after the completion and 13 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 14 including the time limits for filing any motions or applications for extension of 15 time pursuant to applicable law. Any documents which the Designating Party 16 renders accessible to the public (such as for instance by filing in court not under 17 seal or using at trial) shall not be entitled to protection under this Order, unless 18 trial judge orders otherwise. 19 VI. DESIGNATING PROTECTED MATERIAL 20 A. Exercise of Restraint and Care in Designating Material for Protection 21 1. Each Party or Non-Party that designates information or items 22 for protection under this Order must take care to limit any such 23 designation to specific material that qualifies under the appropriate 24 standards. The Designating Party must designate for protection only 25 those parts of material, documents, items, or oral or written 26 communications that qualify so that other portions of the material, 27 documents, items, or communications for which protection is not 1 2. Mass, indiscriminate, or routinized designations are 2 prohibited. Designations that are shown to be clearly unjustified or 3 that have been made for an improper purpose (e.g., to unnecessarily 4 encumber the case development process or to impose unnecessary 5 expenses and burdens on other parties) may expose the Designating 6 Party to sanctions. 7 3. If it comes to a Designating Party's attention that information 8 or items that it designated for protection do not qualify for 9 protection, that Designating Party must promptly notify all other 10 Parties that it is withdrawing the inapplicable designation. 11 B. Manner and Timing of Designations 12 1. Except as otherwise provided in this Order (see, e.g., Section 13 B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or 14 Discovery Material that qualifies for protection under this Order must 15 be clearly so designated before the material is disclosed or produced. 16 2. Designation in conformity with this Order requires the 17 following: 18 a. For information in documentary form (e.g., paper or 19 electronic documents, but excluding transcripts of depositions 20 or other pretrial or trial proceedings), that the Producing Party 21 affix at a minimum, the legend "CONFIDENTIAL" or 22 "HEIGHTENED CONFIDENTIAL” to each page that contains 23 Protected Material. If only a portion or portions of the material 24 on a page qualifies for protection, the Producing Party also 25 must clearly identify the protected portion(s) (e.g., by making 26 appropriate markings in the margins). 27 b. A Party or Non-Party that makes original documents 1 until after the inspecting Party has indicated which documents 2 it would like copied and produced. During the inspection and 3 before the designation, all of the material made available for 4 inspection shall be deemed "CONFIDENTIAL." After the 5 inspecting Party has identified the documents it wants copied 6 and produced, the Producing Party must determine which 7 documents, or portions thereof, qualify for protection under 8 this Order. Then, before producing the specified documents, 9 the Producing Party must affix the "CONFIDENTIAL" or 10 "HEIGHTENED CONFIDENTIAL” legend to each page that 11 contains Protected Material. If only a portion or portions of the 12 material on a page qualifies for protection, the Producing 13 Party also must clearly identify the protected portion(s) (e.g., 14 by making appropriate markings in the margins). 15 c. For testimony given in depositions, within seven (7) 16 days of the completion of a deposition session, the 17 Designating Party must identify portions of the deposition to 18 be treated as Protected Material. Until such time, the entire 19 transcript shall be considered Protected Material. 20 d. For information produced in other than document form 21 and for any other tangible items, that the Producing Party affix 22 in a prominent place on the exterior of the container or 23 containers in which the information is stored the legend 24 "CONFIDENTIAL" or "HEIGHTENED CONFIDENTIAL.” 25 If only a portion or portions of the information warrants 26 protection, the Producing Party, to the extent practicable, shall 27 identify the protected portion(s). 1 C. Inadvertent Failure to Designate 2 If timely corrected, an inadvertent failure to designate qualified 3 information or items does not waive the Designating Party's right to secure 4 protection under this Order for such material. Upon timely correction of a 5 designation, the Receiving Party must make reasonable efforts to assure that 6 the material is treated in accordance with the provisions of this Order. 7 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 A. Timing of Challenges 9 Any Party or Non-Party may challenge a designation of 10 confidentiality at any time that is consistent with the Court's Scheduling 11 Order. 12 B. Meet and Confer 13 The Challenging Party shall initiate the dispute resolution process 14 under Local Rule 37.1 et seq. 15 C. The burden of persuasion in any such challenge proceeding shall be 16 on the Designating Party. Frivolous challenges, and those made for an 17 improper purpose (e.g., to harass or impose unnecessary expenses and 18 burdens on other Parties) may expose the Challenging Party to sanctions. 19 Unless the Designating Party has waived or withdrawn the confidentiality 20 designation, all Parties shall continue to afford the material in question the 21 level of protection to which it is entitled under the Producing Party's 22 designation until the Court rules on the challenge. 23 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL 24 A. Basic Principles 25 1. A Receiving Party may use Protected Material that is disclosed 26 or produced by another Party or by a Non-Party in connection with 27 this Action only for prosecuting, defending, or attempting to settle 1 categories of persons and under the conditions described in this 2 Order. When the Action has been terminated, a Receiving Party must 3 comply with the provisions of Section XIV below. 4 2. Protected Material must be stored and maintained by a 5 Receiving Party at a location and in a secure manner that ensures 6 that access is limited to the persons authorized under this Order. 7 B. Disclosure of "CONFIDENTIAL" Information or Items 8 1. Unless otherwise ordered by the Court or permitted in writing 9 by the Designating Party, a Receiving Party may disclose any 10 information or item designated "CONFIDENTIAL" only to: 11 a. The Receiving Party's Outside Counsel of Record in this 12 Action, as well as employees of said Outside Counsel of 13 Record to whom it is reasonably necessary to disclose the 14 information for this Action; 15 b. The officers, directors, and employees (including 16 House Counsel) of the Receiving Party to whom disclosure is 17 reasonably necessary for this Action; 18 c. Experts (as defined in this Order) of the Receiving 19 Party to whom disclosure is reasonably necessary for this 20 Action and who have signed the "Acknowledgment and 21 Agreement to Be Bound" (Exhibit A); 22 d. The Court and its personnel; 23 e. Court reporters and their staff; 24 f. Professional jury or trial consultants, mock jurors, and 25 Professional Vendors to whom disclosure is reasonably 26 necessary for this Action and who have signed the 27 "Acknowledgment and Agreement to be Bound" attached as 1 g. The author or recipient of a document containing 2 the information or a custodian or other person who 3 otherwise possessed or knew the information; 4 h. During their depositions, witnesses, and attorneys for 5 witnesses, in the Action to whom disclosure is reasonably 6 necessary provided: (i) the deposing party requests that the 7 witness sign the "Acknowledgment and Agreement to Be 8 Bound;" and (ii) they will not be permitted to keep any 9 CONFIDENTIAL Information unless they sign the 10 "Acknowledgment and Agreement to Be Bound," unless 11 otherwise agreed by the Designating Party or ordered by the 12 Court. Pages of transcribed deposition testimony or exhibits to 13 depositions that reveal Protected Material may be separately 14 bound by the court reporter and may not be disclosed to anyone 15 except as permitted under this Stipulated Protective Order; and 16 i. Any mediator or settlement officer, and their supporting 17 personnel, mutually agreed upon by the Parties engaged in 18 settlement discussions. 19 2. A Party may designate any CONFIDENTIAL Information 20 "HEIGHTENED CONFIDENTIAL" where that material constitutes 21 pricing or manufacturing cost information, but limited to such 22 information that is hidden from the public and subject to reasonable 23 efforts by Defendants to maintain its secrecy. Unless otherwise 24 ordered by the Court or permitted in writing by the Designating Party, 25 a Receiving Party may show or read to Plaintiffs, but not give copies 26 to, any information or item designated "HEIGHTENED 27 CONFIDENTIAL." 1 IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED 2 PRODUCED IN OTHER LITIGATION 3 A. If a Party is served with a subpoena or a court order issued in other 4 litigation that compels disclosure of any information or items designated in 5 this Action as "CONFIDENTIAL" or "HEIGHTENED CONFIDENTIAL” 6 that Party must: 7 1. Promptly notify in writing the Designating Party. Such 8 notification shall include a copy of the subpoena or court order; 9 2. Promptly notify in writing the party who caused the subpoena 10 or order to issue in the other litigation that some or all of the material 11 covered by the subpoena or order is subject to this Protective Order. 12 Such notification shall include a copy of this Stipulated Protective 13 Order; and 14 3. Cooperate with respect to all reasonable procedures sought 15 to be pursued by the Designating Party whose Protected Material 16 may be affected. 17 C. If the Designating Party timely seeks a protective order, the Party 18 served with the subpoena or court order shall not produce any information 19 designated in this action as "CONFIDENTIAL" or "HEIGHTENED 20 CONFIDENTIAL" before a determination by the Court from which the 21 subpoena or order issued, unless the Party has obtained the Designating 22 Party's permission. The Designating Party shall bear the burden and 23 expense of seeking protection in that court of its confidential material and 24 nothing in these provisions should be construed as authorizing or 25 encouraging a Receiving Party in this Action to disobey a lawful directive 26 from another court. 27 / / / 1 X. A NON-PARTY'S PROTECTED MATERIAL SOUGHT 2 TO BE PRODUCED IN THIS LITIGATION 3 A. The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as "CONFIDENTIAL" or 5 "HEIGHTENED CONFIDENTIAL." Such information produced by Non- 6 Parties in connection with this litigation is protected by the remedies and 7 relief provided by this Order. Nothing in these provisions should be 8 construed as prohibiting a Non-Party from seeking additional protections. 9 B. In the event that a Party is required, by a valid discovery request, to 10 produce a Non-Party's confidential information in its possession, and the 11 Party is subject to an agreement with the Non-Party not to produce the 12 Non-Party's confidential information, then the Party shall: 13 1. Promptly notify in writing the Requesting Party and the Non- 14 Party that some or all of the information requested is subject to a 15 confidentiality agreement with a Non-Party; 16 2. Promptly provide the Non-Party with a copy of the 17 Stipulated Protective Order in this Action, the relevant discovery 18 request(s), and a reasonably specific description of the information 19 requested; and 20 3. Make the information requested available for inspection by 21 the Non-Party, if requested. 22 C. If the Non-Party fails to seek a protective order from this court 23 within 14 days of receiving the notice and accompanying information, the 24 Receiving Party may produce the Non-Party's confidential information 25 responsive to the discovery request. If the Non-Party timely seeks a 26 protective order, the Receiving Party shall not produce any information in 27 its possession or control that is subject to the confidentiality agreement 1 order to the contrary, the Non-Party shall bear the burden and expense of 2 seeking protection in this court of its Protected Material. 3 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has 5 disclosed Protected Material to any person or in any circumstance not authorized 6 under this Stipulated Protective Order, the Receiving Party must immediately 7 (1) notify in writing the Designating Party of the unauthorized disclosures, (2) use 8 its best efforts to retrieve all unauthorized copies of the Protected Material, 9 (3) inform the person or persons to whom unauthorized disclosures were made of 10 all the terms of this Order, and (4) request such person or persons to execute the 11 "Acknowledgment and Agreement to be Bound" that is attached hereto as 12 Exhibit A. 13 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR 14 OTHERWISE PROTECTED MATERIAL 15 When a Producing Party gives notice to Receiving Parties that certain 16 inadvertently produced material is subject to a claim of privilege or other 17 protection, the obligations of the Receiving Parties are those set forth in Federal 18 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 19 whatever procedure may be established in an e-discovery order that provides for 20 production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the Parties reach an agreement on the effect of 22 disclosure of a communication or information covered by the attorney-client 23 privilege or work product protection, the Parties may incorporate their agreement 24 in the Stipulated Protective Order submitted to the Court. 25 XIII. MISCELLANEOUS 26 A. Right to Further Relief 27 Nothing in this Order abridges the right of any person to seek its 1 B. Right to Assert Other Objections 2 By stipulating to the entry of this Protective Order, no Party waives 3 any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated 5 Protective Order. Similarly, no Party waives any right to object on any 6 ground to use in evidence of any of the material covered by this 7 Protective Order. 8 C. Filing Protected Material 9 A Party that seeks to file under seal any Protected Material must 10 comply with Civil Local Rule 79-5. Protected Material may only be filed 11 under seal pursuant to a court order authorizing the sealing of the specific 12 Protected Material at issue. If a Party's request to file Protected Material 13 under seal is denied by the Court, then the Receiving Party may file the 14 information in the public record unless otherwise instructed by the Court. 15 XIV. FINAL DISPOSITION 16 A. After the final disposition of this Action, as defined in Section V, 17 within sixty (6o) days of a written request by the Designating Party, each 18 Receiving Party must return all Protected Material to the Producing Party 19 or destroy such material. As used in this subdivision, "all Protected 20 Material" includes all copies, abstracts, compilations, summaries, and any 21 other format reproducing or capturing any of the Protected Material. 22 Whether the Protected Material is returned or destroyed, the Receiving 23 Party must submit a written certification to the Producing Party (and, if 24 not the same person or entity, to the Designating Party) by the last day of 25 the sixty (6o) day deadline that (1) identifies (by category, where 26 appropriate) all the Protected Material that was returned or destroyed and 27 (2) affirms that the Receiving Party has not retained any copies, abstracts, l any of the Protected Material. Notwithstanding this provision, Counsel are 2 entitled to retain an archival copy of all pleadings, motion papers, trial, 3 deposition, and hearing transcripts, legal memoranda, correspondence, 4 deposition and trial exhibits, expert reports, attorney work product, and 5 consultant and expert work product, even if such materials contain 6 Protected Material. Any such archival copies that contain or constitute 7 Protected Material remain subject to this Protective Order as set forth in 8 Section V. 9 B. — Any violation of this Order may be punished by any and all 10 appropriate measures including, without limitation, contempt proceedings 11 and/or monetary sanctions. 12 ° FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 14 15 16 / fr = □□ 7 Dated: February 19, 2021 J D. EARLY 18 ited States Magistrate Judge 19 20 21 22 23 24 25 26 27 28

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ________________________ [print or type full name], of _____________ ________________________________________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issue by the United States District Court for the Central District of California on February 19, 2021 in the case of Darren Clevenger v. Welch Foods, Inc., et al., assigned Case Number 8:20-cv-01859 CJC JDE. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. Date: _____________________ City and State where sworn and signed: __________________ Printed Name: _______________________

Signature: ______________________