Miguel Gutierrez v. New Hope Harvesting, LLC

Opinion

1 Rafael Gonzalez, SBN 210202 Brian T. Daly, SBN 298731 112 East Victoria Street 3 Post Office Drawer 789 Santa Barbara, CA 93102-0789 4 Telephone: (805) 966-1501 Facsimile: (805) 966-9204 5 Attorneys for Defendant

11 MIGUEL GUTIERREZ, ) Case No. 2:19-cv-07077-FMO-AFM ) 12 Plaintiffs, ) ) STIPULATED PROTECTIVE 13 v. ) ORDER1 ) 14 NEW HOPE HARVESTING, LLC; ) GUADALUPE GASPAR; ) 15 EUGENIA GASPAR MARTINEZ; ) ARACELI GASPAR GASPAR ) 16 MARTINEZ; and JDB PRO, INC. ) d/b/a CENTRAL WEST ) 17 PRODUCE, Inclusive, ) ) 18 Defendants. ) 19 20 The parties to the above-captioned action hereby request that the Court 21 approve this amended Stipulated Protective Order. The Stipulated Protective 22 Order currently in place (approved by the Court on April 13, 2020) does not 23 include Defendant JDB Pro, Inc. as a signatory. Other than this paragraph and 24 the signature blocks below, this amended Stipulated Protective Order (which is 25 based on the model order) is substantively identical to the order previously 26 approved by the Court on April 13, 2020. 27 1 This Stipulated Protective Order is based substantially on the model 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, the parties hereby stipulate to and petition the 6 Court to enter the following Stipulated Protective Order. The parties 7 acknowledge that this Order does not confer blanket protections on all 8 disclosures or responses to discovery and that the protection it affords from 9 public disclosure and use extends only to the limited information or items that are 10 entitled to confidential treatment under the applicable legal principles. 12 This action is likely to involve trade secrets, customer and pricing lists and 13 other valuable research, development, commercial, financial, technical and/or 14 proprietary information for which special protection from public disclosure and 15 from use for any purpose other than prosecution of this action is warranted. Such 16 confidential and proprietary materials and information consist of, among other 17 things, confidential business or financial information, information regarding 18 confidential business practices, or other confidential research, development, or 19 commercial information (including information implicating privacy rights of 20 third parties), information otherwise generally unavailable to the public, or which 21 may be privileged or otherwise protected from disclosure under state or federal 22 statutes, court rules, case decisions, or common law. Accordingly, to expedite 23 the flow of information, to facilitate the prompt resolution of disputes over 24 confidentiality of discovery materials, to adequately protect information the 25 parties are entitled to keep confidential, to ensure that the parties are permitted 26 reasonable necessary uses of such material in preparation for and in the conduct 27 of trial, to address their handling at the end of the litigation, and serve the ends of 1 intent of the parties that information will not be designated as confidential for 2 tactical reasons and that nothing be so designated without a good faith belief that 3 it has been maintained in a confidential, non-public manner, and there is good 4 cause why it should not be part of the public record of this case. 7 The parties further acknowledge, as set forth in Section 12.3, below, that 8 this Stipulated Protective Order does not entitle them to file confidential 9 information under seal; Local Civil Rule 79-5 sets forth the procedures that must 10 be followed and the standards that will be applied when a party seeks permission 11 from the court to file material under seal. 12 There is a strong presumption that the public has a right of access to 13 judicial proceedings and records in civil cases. In connection with non- 14 dispositive motions, good cause must be shown to support a filing under seal. See 15 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), 16 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar- 17 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even 18 stipulated protective orders require good cause showing), and a specific showing 19 of good cause or compelling reasons with proper evidentiary support and legal 20 justification, must be made with respect to Protected Material that a party seeks 21 to file under seal. The parties’ mere designation of Disclosure or Discovery 22 Material as CONFIDENTIAL does not— without the submission of competent 23 evidence by declaration, establishing that the material sought to be filed under 24 seal qualifies as confidential, privileged, or otherwise protectable—constitute 25 good cause. 26 Further, if a party requests sealing related to a dispositive motion or trial, 27 then compelling reasons, not only good cause, for the sealing must be shown, and 1 protected. 2 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 3 2010). For each item or type of information, document, or thing sought to be filed 4 or introduced under seal in connection with a dispositive motion or trial, the party 5 seeking protection must articulate compelling reasons, supported by specific facts 6 and legal justification, for the requested sealing order. Again, competent evidence 7 supporting the application to file documents under seal must be provided by 8 declaration. 9 Any document that is not confidential, privileged, or otherwise protectable 10 in its entirety will not be filed under seal if the confidential portions can be 11 redacted. If documents can be redacted, then a redacted version for public 12 viewing, omitting only the confidential, privileged, or otherwise protectable 13 portions of the document, shall be filed. Any application that seeks to file 14 documents under seal in their entirety should include an explanation of why 15 redaction is not feasible. 16 2. DEFINITIONS 17 2.1 Action: Shall mean the above-entitled action, 2:19-cv-07077-FMO- 19 2.2 Challenging Party: a Party or Non-Party that challenges the 20 designation of information or items under this Order. 21 2.3 “CONFIDENTIAL”: Information or Items: information (regardless 22 of how it is generated, stored or maintained) or tangible things that qualify for 23 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 24 the Good Cause Statement. 25 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 26 their support staff). 27 2.5 Designating Party: a Party or Non-Party that designates information 1 “CONFIDENTIAL.” 2 2.6 Disclosure or Discovery Material: all items or information, 3 regardless of the medium or manner in which it is generated, stored, or 4 maintained (including, among other things, testimony, transcripts, and tangible 5 things), that are produced or generated in disclosures or responses to discovery in 6 this matter. 7 2.7 Expert: a person with specialized knowledge or experience in a 8 matter pertinent to the litigation who has been retained by a Party or its counsel 9 to serve as an expert witness or as a consultant in this Action. 10 2.8 House Counsel: attorneys who are employees of a party to this 11 Action. House Counsel does not include Outside Counsel of Record or any other 12 outside counsel. 13 2.9 Non-Party: any natural person, partnership, corporation, association 14 or other legal entity not named as a Party to this action. 15 2.10 Outside Counsel of Record: attorneys who are not employees of a 16 party to this Action but are retained to represent or advise a party to this Action 17 and have appeared in this Action on behalf of that party or are affiliated with a 18 law firm that has appeared on behalf of that party, and includes support staff. 19 2.11 Party: any party to this Action, including all of its officers, directors, 20 employees, consultants, retained experts, and Outside Counsel of Record (and 21 their support staffs). 22 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 23 Discovery Material in this Action. 24 2.13 Professional Vendors: persons or entities that provide litigation 25 support services (e.g., photocopying, videotaping, translating, preparing exhibits 26 or demonstrations, and organizing, storing, or retrieving data in any form or 27 medium) and their employees and subcontractors. 1 designated as “CONFIDENTIAL.” 2 2.15 Receiving Party: a Party that receives Disclosure or Discovery 3 Material from a Producing Party. 4 3. SCOPE 5 The protections conferred by this Stipulation and Order cover not only 6 Protected Material (as defined above), but also (1) any information copied or 7 extracted from Protected Material; (2) all copies, excerpts, summaries, or 8 compilations of Protected Material; and (3) any testimony, conversations, or 9 presentations by Parties or their Counsel that might reveal Protected Material. 10 Any use of Protected Material at trial shall be governed by the orders of 11 the trial judge. This Order does not govern the use of Protected Material at trial. 12 4. DURATION 13 Once a case proceeds to trial, information that was designated as 14 CONFIDENTIAL or maintained pursuant to this protective order used or 15 introduced as an exhibit at trial becomes public and will be presumptively 16 available to all members of the public, including the press, unless compelling 17 reasons supported by specific factual findings to proceed otherwise are made to 18 the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 19 (distinguishing “good cause” showing for sealing documents produced in 20 discovery from “compelling reasons” standard when merits-related documents 21 are part of court record). Accordingly, the terms of this protective order do not 22 extend beyond the commencement of the trial. 23 5. DESIGNATING PROTECTED MATERIAL 24 5.1 Exercise of Restraint and Care in Designating Material for 25 Protection. Each Party or Non-Party that designates information or items for 26 protection under this Order must take care to limit any such designation to 27 specific material that qualifies under the appropriate standards. The Designating 1 or oral or written communications that qualify so that other portions of the 2 material, documents, items or communications for which protection is not 3 warranted are not swept unjustifiably within the ambit of this Order. 4 Mass, indiscriminate or routinized designations are prohibited. 5 Designations that are shown to be clearly unjustified or that have been made for 6 an improper purpose (e.g., to unnecessarily encumber the case development 7 process or to impose unnecessary expenses and burdens on other parties) may 8 expose the Designating Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items that 10 it designated for protection do not qualify for protection, that Designating Party 11 must promptly notify all other Parties that it is withdrawing the inapplicable 12 designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided 14 in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 15 stipulated or ordered, Disclosure or Discovery Material that qualifies for 16 protection under this Order must be clearly so designated before the material is 17 disclosed or produced. 18 Designation in conformity with this Order requires: 19 (a) for information in documentary form (e.g., paper or electronic 20 documents, but excluding transcripts of depositions or other pretrial or trial 21 proceedings), that the Producing Party affix at a minimum, the legend 22 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 23 contains protected material. If only a portion of the material on a page qualifies 24 for protection, the Producing Party also must clearly identify the protected 25 portion(s) (e.g., by making appropriate markings in the margins). 26 A Party or Non-Party that makes original documents available for 27 inspection need not designate them for protection until after the inspecting Party 1 inspection and before the designation, all of the material made available for 2 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 3 identified the documents it wants copied and produced, the Producing Party must 4 determine which documents, or portions thereof, qualify for protection under this 5 Order. Then, before producing the specified documents, the Producing Party 6 must affix the “CONFIDENTIAL legend” to each page that contains Protected 7 Material. If only a portion of the material on a page qualifies for protection, the 8 Producing Party also must clearly identify the protected portion(s) (e.g., by 9 making appropriate markings in the margins). 10 (b) for testimony given in depositions that the Designating Party 11 identifies the Disclosure or Discovery Material on the record, before the close of 12 the deposition all protected testimony. 13 (c) for information produced in some form other than documentary and 14 for any other tangible items, that the Producing Party affix in a prominent place 15 on the exterior of the container or containers in which the information is stored 16 the legend “CONFIDENTIAL.” If only a portion or portions of the information 17 warrants protection, the Producing Party, to the extent practicable, shall identify 18 the protected portion(s). 19 5.3 Inadvertent Failures to Designate. If timely corrected, an 20 inadvertent failure to designate qualified information or items does not, standing 21 alone, waive the Designating Party’s right to secure protection under this Order 22 for such material. 23 Upon timely correction of a designation, the Receiving Party must make 24 reasonable efforts to assure that the material is treated in accordance with the 25 provisions of this Order. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 1 Scheduling Order. 2 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 3 resolution process under Local Rule 37-1 et seq. 4 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 5 joint stipulation pursuant to Local Rule 37-2. 6 6.4 The Burden of Persuasion in Any Such Challenge Proceeding Shall 7 Be on the Designating Party. Frivolous challenges, and those made for an 8 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 9 other parties) may expose the Challenging Party to sanctions. Unless the 10 Designating Party has waived or withdrawn the confidentiality designation, all 11 parties shall continue to afford the material in question the level of protection to 12 which it is entitled under the Producing Party’s designation until the Court rules 13 on the challenge. 14 7. ACCESS TO AND USE OF PROTECTED MATERIAL 15 7.1 Basic Principles. A Receiving Party may use Protected Material that 16 is disclosed or produced by another Party or by a Non-Party in connection with 17 this Action only for prosecuting, defending or attempting to settle this Action. 18 Such Protected Material may be disclosed only to the categories of persons 19 and under the conditions described in this Order. When the Action has been 20 terminated, a Receiving Party must comply with the provisions of section 13 21 below (FINAL DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a 23 location and in a secure manner that ensures that access is limited to the persons 24 authorized under this Order. 25 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 26 otherwise ordered by the court or permitted in writing by the Designating Party, a 27 Receiving Party may disclose any information or item designated 1 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 2 well as employees of said Outside Counsel of Record to whom it is reasonably 3 necessary to disclose the information for this Action; 4 (b) the officers, directors, and employees (including House Counsel) of 5 the Receiving Party to whom disclosure is reasonably necessary for this Action; 6 (c) Experts (as defined in this Order) of the Receiving Party to whom 7 disclosure is reasonably necessary for this Action and who have signed the 8 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 (d) the court and its personnel; 10 (e) court reporters and their staff; 11 (f) professional jury or trial consultants, mock jurors, and Professional 12 Vendors to whom disclosure is reasonably necessary for this Action and who 13 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (g) the author or recipient of a document containing the information or a 15 custodian or other person who otherwise possessed or knew the information; 16 (h) during their depositions, witnesses, and attorneys for witnesses, in 17 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 18 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 19 they will not be permitted to keep any confidential information unless they sign 20 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 21 otherwise agreed by the Designating Party or ordered by the court. Pages of 22 transcribed deposition testimony or exhibits to depositions that reveal Protected 23 Material may be separately bound by the court reporter and may not be disclosed 24 to anyone except as permitted under this Stipulated Protective Order; 25 (i) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions; 27 and 1 including wages statements, time and/or punch cards, or any paper record 2 documenting hours worked or pieces produced by that worker, documents 3 relating to that employee’s reimbursement or payment of expenses and/or costs, 4 payroll summaries specific to that employee, training records of the employee, 5 employment agreements between employee and New Hope Harvesting and the 6 employee, and any performance evaluations of that employee. 7 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 9 If a Party is served with a subpoena or a court order issued in other 10 litigation that compels disclosure of any information or items designated in this 11 Action as “CONFIDENTIAL,” that Party must: 12 (a) promptly notify in writing the Designating Party. Such notification 13 shall include a copy of the subpoena or court order; 14 (b) promptly notify in writing the party who caused the subpoena or 15 order to issue in the other litigation that some or all of the material covered by the 16 subpoena or order is subject to this Protective Order. Such notification shall 17 include a copy of this Stipulated Protective Order; and 18 (c) cooperate with respect to all reasonable procedures sought to be 19 pursued by the Designating Party whose Protected Material may be affected. 20 If the Designating Party timely seeks a protective order, the Party served 21 with the subpoena or court order shall not produce any information designated in 22 this action as “CONFIDENTIAL” before a determination by the court from 23 which the subpoena or order issued, unless the Party has obtained the 24 Designating Party’s permission. The Designating Party shall bear the burden and 25 expense of seeking protection in that court of its confidential material and 26 nothing in these provisions should be construed as authorizing or encouraging a 27 Receiving Party in this Action to disobey a lawful directive from another court. 2 (a) The terms of this Order are applicable to information produced by a 3 Non-Party in this Action and designated as “CONFIDENTIAL.” Such 4 information produced by Non-Parties in connection with this litigation is 5 protected by the remedies and relief provided by this Order. Nothing in these 6 provisions should be construed as prohibiting a Non-Party from seeking 7 additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a 17 reasonably specific description of the information requested; and 18 (3) make the information requested available for inspection by the Non- 19 Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving 22 Party may produce the Non-Party’s confidential information responsive to the 23 discovery request. If the Non-Party timely seeks a protective order, the Receiving 24 Party shall not produce any information in its possession or control that is subject 25 to the confidentiality agreement with the Non-Party before a determination by the 26 court. 27 Absent a court order to the contrary, the Non-Party shall bear the burden 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has 3 disclosed Protected Material to any person or in any circumstance not authorized 4 under this Stipulated Protective Order, the Receiving Party must immediately (a) 5 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 6 best efforts to retrieve all unauthorized copies of the Protected Material, (c) 7 inform the person or persons to whom unauthorized disclosures were made of all 8 the terms of this Order, and (d) request such person or persons to execute the 9 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 10 Exhibit A. 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other 15 protection, the obligations of the Receiving Parties are those set forth in Federal 16 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 17 whatever procedure may be established in an e-discovery order that provides for 18 production without prior privilege review. Pursuant to Federal Rule of Evidence 19 502(d) and (e), insofar as the parties reach an agreement on the effect of 20 disclosure of a communication or information covered by the attorney-client 21 privilege or work product protection, the parties may incorporate their agreement 22 in the stipulated protective order submitted to the court. 23 12. MISCELLANEOUS 24 12.1 Right to Further Relief. Nothing in this Order abridges the right of 25 any person to seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of 27 this Protective Order, no Party waives any right it otherwise would have to object 1 in this Stipulated Protective Order. Similarly, no Party waives any right to object 2 on any ground to use in evidence of any of the material covered by this Protective 3 Order. 4 12.3 Filing Protected Material. A Party that seeks to file under seal any 5 Protected Material must comply with Local Civil Rule 79-5. Protected 6 Material may only be filed under seal pursuant to a court order authorizing the 7 sealing of the specific Protected Material at issue. If a Party’s request to file 8 Protected Material under seal is denied by the court, then the Receiving Party 9 may file the information in the public record unless otherwise instructed by the 10 court. 11 13. FINAL DISPOSITION 12 After the final disposition of this Action, as defined in paragraph 4, within 13 60 days of a written request by the Designating Party, each Receiving Party must 14 return all Protected Material to the Producing Party or destroy such material. As 15 used in this subdivision, “all Protected Material” includes all copies, abstracts, 16 compilations, summaries, and any other format reproducing or capturing any of 17 the Protected Material. Whether the Protected Material is returned or destroyed, 18 the Receiving Party must submit a written certification to the Producing Party 19 (and, if not the same person or entity, to the Designating Party) by the 60 day 20 deadline that (1) identifies (by category, where appropriate) all the Protected 21 Material that was returned or destroyed and (2) affirms that the Receiving Party 22 has not retained any copies, abstracts, compilations, summaries or any other 23 format reproducing or capturing any of the Protected Material. Notwithstanding 24 this provision, Counsel are entitled to retain an archival copy of all pleadings, 25 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 26 correspondence, deposition and trial exhibits, expert reports, attorney work 27 product, and consultant and expert work product, even if such materials contain 1 || Material remain subject to this Protective Order as set forth in Section 4 || (DURATION). 3] 14. VIOLATION 4 Any violation of this Order may be punished by appropriate measures 5 || including, without limitation, contempt proceedings and/or monetary sanctions. 6 8 Dated: ADVOCATES FOR WORKER RIGHTS LLP 10 11 Attorney for Plaintiff 12 13 | Dated: JACKSON LEWIS P.C. 14 15 Attorney for Defendants New Hope Harvesting, Guadalupe 16 Gaspar, Eugenia Gaspar Martinez, Araceli Gaspar Martinez 17 18 | Dated: MULLEN & HENZELL, LLP 19 20 Attorney for JDB Pro, Inc., d/b/a Central West Produce 21 93 DATED: 7/21/2021 Oey Moke a, 25 | HON. ALEXANDERF.MACKINNON 27 | United States Magistrate Judge 28

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 I, _____________________________, declare that: I am currently employed by __________________ located at 4 ____________________and my current job title is __________________. My 5 personal residence is located at________________________________. I have 6 read and believe I understand the terms of the Protective Order filed in MIGUEL 7 GUTIERREZ v. NEW HOPE HARVESTING, LLC; GUADALUPE GASPAR; 8 EUGENIA GASPAR MARTINEZ; ARACELI GASPAR MARTINEZ, United 9 States District Court Central District of California, Case No. 2-19-CV-07077- 10 FMO-AFM. I agree to comply with and be bound by the provisions of the 11 Protective Order. I understand that any violation of the Protective Order may 12 subject me to sanctions by the Court, civil liability, criminal liability, or any 13 combination of the above. I submit myself to the jurisdiction of the United States 14 District Court Central District of California for the purpose of enforcing or 15 otherwise providing relief relating to the Protective Order. I agree to abide by the 16 terms set forth as follows: 17 I have been designated in accordance with Paragraphs 7(c), (g) or (h) of 18 the Protective Order to receive information designated as “CONFIDENTIAL.” I 19 shall not divulge any materials, or copies of materials, which are designated 20 “CONFIDENTIAL” obtained in accordance with the Protective Order, or the 21 contents of such materials, to any person other than those specifically authorized 22 by the Protective Order. I shall not copy or use such materials except for the 23 purposes of this Litigation and in accordance with the terms of the Protective 24 Order. As soon as is practical, but no later than thirty (30) days after final 25 termination of this litigation, I shall return any materials in my possession 26 designated “CONFIDENTIAL” to the attorney from whom I received such materials. I shall also return to that attorney, at that time, all copies, excerpts, 27 1 I declare under penalty of perjury under the laws of the State of California 2 that the foregoing is true and correct. 3 Dated: Signature:_____________________ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27