Leah Edwards v. Alorica, Inc.

• Court: District Court, C.D. California
• Decided: March 5, 2021
• Docket: 8:19-cv-02124
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 LEAH EDWARDS, Case No. 8:19-cv-02124-JWH-DFMx 11 12 Plaintiff, DISCOVERY MATTER 13 14 vs. [PXRXOXPXOXSXEXDX] STIPULATED PROTECTIVE ORDER 15 16 ALORICA, INC., 17 Magistrate: Hon. Douglas F. McCormick 18 Defendant. 19 Trial Date: June 7, 2021 20 21 1. A. PURPOSES AND LIMITATIONS 22 Discovery in this action is likely to involve production of confidential, proprietary or 23 private information for which special protection from public disclosure and from use for any 24 purpose other than prosecuting this litigation may be warranted. 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 27 to discovery and that the protection it affords from public disclosure and use extends only to the 1 limited information or items that are entitled to confidential treatment under the applicable legal 2 principles. 3 B. GOOD CAUSE STATEMENT 4 This action is likely to involve valuable personally identifiable, commercial, financial, 5 technical and/or proprietary information for which special protection from public disclosure and 6 from use for any purpose other than prosecution of this action is warranted. Such personal, 7 confidential and proprietary materials and information consist of, among other things, personally 8 identifiable information, confidential business or financial information, information regarding 9 confidential business practices, or other confidential research, development, or commercial 10 information (including information implicating privacy rights of third parties), information 11 otherwise generally unavailable to the public, or which may be privileged or otherwise protected 12 from disclosure under state or federal statutes, court rules, case decisions, or common law. 13 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes 14 over confidentiality of discovery materials, to adequately protect information the parties are 15 entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of 16 such material in preparation for and in the conduct of trial, to address their handling at the end of 17 the litigation, and serve the ends of justice, a protective order for such information is justified in 18 this matter. It is the intent of the parties that information will not be designated as confidential 19 for tactical reasons and that nothing be so designated without a good faith belief that it has been 20 maintained in a confidential, non-public manner, and there is good cause why it should not be 21 part of the public record of this case. 22 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 23 The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated 24 Protective Order does not entitle them to file confidential information under seal; Local Civil 25 Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied 26 when a party seeks permission from the court to file material under seal. 27 There is a strong presumption that the public has a right of access to judicial proceedings 28 and records in civil cases. In connection with non-dispositive motions, good cause must be 1 shown to support a filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 2 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 3 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 4 stipulated protective orders require good cause showing), and a specific showing of good cause 5 or compelling reasons with proper evidentiary support and legal justification, must be made with 6 respect to Protected Material that a party seeks to file under seal. The parties’ mere designation 7 of Disclosure or Discovery Material as CONFIDENTIAL does not— without the submission of 8 competent evidence by declaration, establishing that the material sought to be filed under seal 9 qualifies as confidential, privileged, or otherwise protectable—constitute good cause. 10 Further, if a party requests sealing related to a dispositive motion or trial, then compelling 11 reasons, not only good cause, for the sealing must be shown, and the relief sought shall be 12 narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors 13 Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or 14 thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, 15 the party seeking protection must articulate compelling reasons, supported by specific facts and 16 legal justification, for the requested sealing order. Again, competent evidence supporting the 17 application to file documents under seal must be provided by declaration. 18 Any document that is not confidential, privileged, or otherwise protectable in its entirety 19 will not be filed under seal if the confidential portions can be redacted. If documents can be 20 redacted, then a redacted version for public viewing, omitting only the confidential, privileged, 21 or otherwise protectable portions of the document, shall be filed. Any application that seeks to 22 file documents under seal in their entirety should include an explanation of why redaction is not 23 feasible. 24 2. DEFINITIONS 25 2.1 Action: this pending federal lawsuit. 26 2.2 Challenging Party: a Party or Non-Party that challenges the designation of 27 information or items under this Order. 28 1 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is 2 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 3 of Civil Procedure 26(c), and as specified above in the Good Cause Statement. 4 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support 5 staff). 6 2.5 Designating Party: a Party or Non-Party that designates information or items that 7 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 8 2.6 Disclosure or Discovery Material: all items or information, regardless of the 9 medium or manner in which it is generated, stored, or maintained (including, among other things, 10 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 11 responses to discovery in this matter. 12 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 13 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 14 consultant in this Action. 15 2.8 House Counsel: attorneys who are employees of a party to this Action. House 16 Counsel does not include Outside Counsel of Record or any other outside counsel. 17 2.9 Non-Party: any natural person, partnership, corporation, association or other legal 18 entity not named as a Party to this action. 19 2.10 Outside Counsel of Record: attorneys who are not employees of a party to this 20 Action but are retained to represent or advise a party to this Action and have appeared in this 21 Action on behalf of that party or are affiliated with a law firm that has appeared on behalf of that 22 party, and includes support staff. 23 2.11 Party: any party to this Action, including all of its officers, directors, employees, 24 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 25 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 26 Material in this Action. 27 2.13 Professional Vendors: persons or entities that provide litigation support services 28 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 1 organizing, storing, or retrieving data in any form or medium) and their employees and 2 subcontractors. 3 2.14 Protected Material: any Disclosure or Discovery Material that is designated as 4 “CONFIDENTIAL.” 5 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a 6 Producing Party. 7 3. SCOPE 8 The protections conferred by this Stipulation and Order cover not only Protected Material 9 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 10 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 11 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 12 Any use of Protected Material at trial shall be governed by the orders of the trial judge. 13 This Order does not govern the use of Protected Material at trial. 14 4. DURATION 15 Once a case proceeds to trial, information that was designated as CONFIDENTIAL or 16 maintained pursuant to this protective order used or introduced as an exhibit at trial becomes 17 public and will be presumptively available to all members of the public, including the press, 18 unless compelling reasons supported by specific factual findings to proceed otherwise are made 19 to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing 20 “good cause” showing for sealing documents produced in discovery from “compelling reasons” 21 standard when merits-related documents are part of court record). Accordingly, the terms of this 22 protective order do not extend beyond the commencement of the trial. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 25 or Non-Party that designates information or items for protection under this Order must take care 26 to limit any such designation to specific material that qualifies under the appropriate standards. 27 The Designating Party must designate for protection only those parts of material, documents, 28 items or oral or written communications that qualify so that other portions of the material, 1 documents, items or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this Order. 3 Mass, indiscriminate or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber the case development process or to impose unnecessary expenses and 6 burdens on other parties) may expose the Designating Party to sanctions. 7 If it comes to a Designating Party’s attention that information or items that it designated 8 for protection do not qualify for protection, that Designating Party must promptly notify all other 9 Parties that it is withdrawing the inapplicable designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 11 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 12 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 13 designated before the material is disclosed or produced. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic documents, 16 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 17 Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL 18 legend”), to each page that contains protected material. If only a portion of the material on a 19 page qualifies for protection, the Producing Party also must clearly identify the protected 20 portion(s) (e.g., by making appropriate markings in the margins). 21 A Party or Non-Party that makes original documents available for inspection need not 22 designate them for protection until after the inspecting Party has indicated which documents it 23 would like copied and produced. During the inspection and before the designation, all of the 24 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 25 Party has identified the documents it wants copied and produced, the Producing Party must 26 determine which documents, or portions thereof, qualify for protection under this Order. Then, 27 before producing the specified documents, the Producing Party must affix the 28 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a portion of 1 the material on a page qualifies for protection, the Producing Party also must clearly identify the 2 protected portion(s) (e.g., by making appropriate markings in the margins). 3 (b) for testimony given in depositions that the Designating Party identifies the 4 Disclosure or Discovery Material on the record, before the close of the deposition all protected 5 testimony. 6 (c) for information produced in some form other than documentary and for 7 any other tangible items, that the Producing Party affix in a prominent place on the exterior of 8 the container or containers in which the information is stored the legend “CONFIDENTIAL.” If 9 only a portion or portions of the information warrants protection, the Producing Party, to the 10 extent practicable, shall identify the protected portion(s). 11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 12 designate qualified information or items does not, standing alone, waive the Designating Party’s 13 right to secure protection under this Order for such material. Upon timely correction of a 14 designation, the Receiving Party must make reasonable efforts to assure that the material is 15 treated in accordance with the provisions of this Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 18 confidentiality at any time that is consistent with the Court’s Scheduling Order. 19 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 20 process under Local Rule 37-1 et seq. 21 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint 22 stipulation pursuant to Local Rule 37-2. 23 6.4 The burden of persuasion in any such challenge proceeding shall be on the 24 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 25 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 26 to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality 27 designation, all parties shall continue to afford the material in question the level of protection to 28 1 which it is entitled under the Producing Party’s designation until the Court rules on the 2 challenge. 3 7. ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 5 or produced by another Party or by a Non-Party in connection with this Action only for 6 prosecuting, defending or attempting to settle this Action. Such Protected Material may be 7 disclosed only to the categories of persons and under the conditions described in this Order. 8 When the Action has been terminated, a Receiving Party must comply with the provisions of 9 section 13 below (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and 11 in a secure manner that ensures that access is limited to the persons authorized under this Order. 12 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 13 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 14 disclose any information or item designated “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 16 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 17 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 “Acknowledgment 22 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 signed the 27 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 28 1 (g) the author or recipient of a document containing the information or a 2 custodian or other person who otherwise possessed or knew the information; 3 (h) during their depositions, witnesses, and attorneys for witnesses, in the 4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that 5 the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be permitted to keep 6 any confidential information unless they sign the “Acknowledgment and Agreement to Be 7 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. 8 Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 9 Material may be separately bound by the court reporter and may not be disclosed to anyone 10 except as permitted under this Stipulated Protective Order; and 11 (i) any mediator or settlement officer, and their supporting personnel, 12 mutually agreed upon by any of the parties engaged in settlement discussions. 13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 14 LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that compels 16 disclosure of any information or items designated in this Action as “CONFIDENTIAL,” that 17 Party must: 18 (a) promptly notify in writing the Designating Party. Such notification shall 19 include a copy of the subpoena or court order; 20 (b) promptly notify in writing the party who caused the subpoena or order to 21 issue in the other litigation that some or all of the material covered by the subpoena or order is 22 subject to this Protective Order. Such notification shall include a copy of this Stipulated 23 Protective Order; and 24 (c) cooperate with respect to all reasonable procedures sought to be pursued 25 by the Designating Party whose Protected Material may be affected. 26 If the Designating Party timely seeks a protective order, the Party served with the 27 subpoena or court order shall not produce any information designated in this action as 28 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 1 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 2 shall bear the burden and expense of seeking protection in that court of its confidential material 3 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 4 Party in this Action to disobey a lawful directive from another court. 5 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 6 LITIGATION 7 (a) The terms of this Order are applicable to information produced by a Non- 8 Party in this Action and designated as “CONFIDENTIAL.” Such information produced by Non- 9 Parties in connection with this litigation is protected by the remedies and relief provided by this 10 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 11 additional protections. 12 (b) In the event that a Party is required, by a valid discovery request, to 13 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 14 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 15 Party shall: 16 (1) promptly notify in writing the Requesting Party and the Non-Party 17 that some or all of the information requested is subject to a confidentiality agreement with a 18 Non-Party; 19 (2) promptly provide the Non-Party with a copy of the Stipulated 20 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific 21 description of the information requested; and 22 (3) make the information requested available for inspection by the 23 Non-Party, if requested. 24 (c) If the Non-Party fails to seek a protective order from this court within 14 25 days of receiving the notice and accompanying information, the Receiving Party may produce 26 the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 27 timely seeks a protective order, the Receiving Party shall not produce any information in its 28 possession or control that is subject to the confidentiality agreement with the Non-Party before a 1 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 2 burden and expense of seeking protection in this court of its Protected Material. 3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 5 Material to any person or in any circumstance not authorized under this Stipulated Protective 6 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 7 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 8 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 9 made of all the terms of this Order, and (d) request such person or persons to execute the 10 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 12 MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain inadvertently 14 produced material is subject to a claim of privilege or other protection, the obligations of the 15 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 16 provision is not intended to modify whatever procedure may be established in an e-discovery 17 order that provides for production without prior privilege review. Pursuant to Federal Rule of 18 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 19 communication or information covered by the attorney-client privilege or work product 20 protection, the parties may incorporate their agreement in the stipulated protective order 21 submitted to the court. 22 12. MISCELLANEOUS 23 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 24 seek its modification by the Court in the future. 25 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 26 Order, no Party waives any right it otherwise would have to object to disclosing or producing 27 any information or item on any ground not addressed in this Stipulated Protective Order. 28 1 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 2 material covered by this Protective Order. 3 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected 4 Material must comply with Local Civil Rule 79-5. Protected Material may only be filed under 5 seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. 6 If a Party’s request to file Protected Material under seal is denied by the court, then the 7 Receiving Party may file the information in the public record unless otherwise instructed by the 8 court. 9 13. FINAL DISPOSITION 10 After the final disposition of this Action, as defined in paragraph 4, within 60 days of a 11 written request by the Designating Party, each Receiving Party must return all Protected Material 12 to the Producing Party or destroy such material. As used in this subdivision, “all Protected 13 Material” includes all copies, abstracts, compilations, summaries, and any other format 14 reproducing or capturing any of the Protected Material. Whether the Protected Material is 15 returned or destroyed, the Receiving Party must submit a written certification to the Producing 16 Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 17 (1) identifies (by category, where appropriate) all the Protected Material that was returned or 18 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 19 compilations, summaries or any other format reproducing or capturing any of the Protected 20 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 21 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 22 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 23 consultant and expert work product, even if such materials contain Protected Material. Any such 24 archival copies that contain or constitute Protected Material remain subject to this Protective 25 Order as set forth in Section 4 (DURATION). 26 14. VIOLATION 27 Any violation of this Order may be punished by appropriate measures including, without 28 limitation, contempt proceedings and/or monetary sanctions. 1}| IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 DATED: March 3, 2021 4 /s/ Yitzchak Zelman 5 Yitzchak Zelman, Attorney for Plaintiff 6 DATED: March 3, 2021 8 /s/ Andrew W. Homer 9 Andrew W. Homer Lauri A. Mazzuchetti (pro hac vice application to be submitted) 10 Whitney M. Smith (pro hac vice application to be submitted) ul Attorneys for Defendant 12 L.R. 5-4.3.4(a)(2)() Certification: 13 Yitzchak Zelman concurs in the Filing’s content and has authorized the ECF filing of same. 14 15 By: _/s/ Andrew W. Homer Andrew W. Homer 16 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 17 18 19|| DATED: _ March 5, 2021 20 21 09 HON. D@UGLAS F. MCCORMICK United States Magistrate Judge 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 5 have read in its entirety and understand the Stipulated Protective Order that was issued by the 6 United States District Court for the Central District of California on [date] in the case of 7 __________________ of Leah Edwards v. Alorica, Inc., case number 8:19-cv-02124-JWH- 8 DFMX. I agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order and I understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 11 manner any information or item that is subject to this Stipulated Protective Order to any person 12 or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the Central 14 District of California for enforcing the terms of this Stipulated Protective Order, even if such 15 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 number] as my 18 California agent for service of process in connection with this action or any proceedings related 19 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