Janet M Feely v. Sunrise Senior Living Inc et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 16 (yb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
Hunton & Williams LLP
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627
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JANET M. FEELY, individually and on
behalf of other persons similarly situated,
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Plaintiff,
v.
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Case No. LACV11-6601 SVW (AJWx)
SUNRISE SENIOR LIVING, INC., and
DOES 1 through 55,
Defendants.
ORDER REGARDING THE
EXCHANGE OF CONFIDENTIAL
MATERIAL
Complaint filed: July 7, 2011
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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WHEREAS, Plaintiff Janet M. Feely and Defendant Sunrise Senior Living, Inc.
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(the “Parties”) submit, and the Court hereby finds, that GOOD CAUSE EXISTS in
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this case for the issuance of this Order Regarding the Exchange of Confidential
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Material (“Protective Order”) in order to expedite the flow of discovery material,
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facilitate the prompt resolution of disputes over the confidentiality of information,
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adequately protect material entitled to be kept confidential, and ensure that protection
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is afforded only to material so entitled;
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WHEREAS, the Parties hereto, having stipulated and agreed, by and through
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their respective counsel, to the entry of this Protective Order in the above-captioned
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action and the Court having approved the same;
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IT IS HEREBY ORDERED AS FOLLOWS:
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1.0
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Definitions.
1.1
Party: Janet M. Feely or Sunrise Senior Living, Inc., the named
parties to this action.
1.2
Discovery Material: All items or information, regardless of the
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medium or manner generated, stored, or maintained (including, among other things,
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testimony, transcripts, documents or tangible things) that are produced or generated in
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disclosures or responses to discovery in this matter.
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1.3
“Confidential” Information or Items:
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(i)
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18 U.S.C. § 1839;
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(ii)
Information that is a “trade secret” as that term is defined in
Confidential and proprietary business and/or financial
information;
(iii)
Non-public information about any individual or individuals,
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including personnel records, evaluations, compensation levels, pay data,
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databases, and any surveys, statistical analysis, analyses of personnel
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practices, or other information incorporating or aggregating information
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pertaining to individuals; and/or
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
(iv) Information alleged in good faith by a Party to be subject to
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protection under California law, and/or information that is confidential or
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of commercial value; and
(v)
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Information that is protected against disclosure by a written
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confidential information agreement between a third party and Plaintiff or
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Defendant.
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1.4
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550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627
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Designating Party: A Party or non-party that designates its
Discovery Material as “Confidential.”
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Receiving Party: A Party that receives Discovery Material from a
Designating Party.
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Protected Material: Any Discovery Material that is designated as
“Confidential.”
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Outside Counsel: Attorneys who are not employees of a Party but
who are retained to represent or advise a Party in this action.
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1.8
In-House Counsel: Attorneys who are employees of a Party.
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1.9
Counsel (without qualifier): Outside Counsel and In-House
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Counsel (as well as their support staffs).
1.10 Expert: A person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its Counsel to
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serve as an expert witness or as a consultant in this litigation; and who is not a past or
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a current employee of a Party and who, at the time of retention, was not anticipated to
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become an employee of a Party. This definition includes a professional jury or trial
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consultant retained in connection with this litigation.
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1.11 Professional Vendors: Persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing exhibits or
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demonstrations, organizing, storing, retrieving data in any form or medium, etc.) and
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their employees and subcontractors.
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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2.0
Scope.
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The protections conferred by this protective order cover not only Protected
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Material (as defined above), but also any information copied or extracted therefrom,
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as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
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conversations, or presentations by parties or counsel to or in court or in other settings
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that would reveal Protected Material.
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3.0
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Even after the termination of this litigation, the confidentiality obligations
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imposed by this protective order shall remain in effect until a Designating Party agrees
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Duration.
otherwise in writing or a Court orders otherwise.
4.0
Designating Protected Material.
4.1
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Exercise of Restraint and Care in Designating Discovery Material
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for Protection. Each Party or non-party that designates Discovery Material for
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protection under this Order must take care to limit any such designation to specific
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Discovery Material that qualifies under the appropriate confidentiality standard. A
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Designating Party must take care to designate for protection only those parts of
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Discovery Material, so that other portions of the Discovery Material for which
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protection is not warranted are not swept unjustifiably within the ambit of this
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protective order.
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If it comes to a Designating Party’s attention that Discovery Material that that
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Party designated for protection does not qualify for protection at all, or does not
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qualify for the level of protection initially asserted, that Designating Party must
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promptly notify all other parties that it is withdrawing the improper designation.
4.2
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Manner and Timing of Designations. Except as otherwise
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provided in this protective order (see, e.g., second paragraph of section 4.2(a), below),
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or as otherwise stipulated or ordered, Discovery Material that qualifies for protection
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under this protective order must be clearly so designated before such material is
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produced.
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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Designation in conformity with this protective order requires:
4.2(a) For Discovery Material in documentary form (apart from
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transcripts of depositions or other pretrial proceedings), that the Designating Party
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affix the legend “CONFIDENTIAL” prominently on each page that contains Protected
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Material. If only a portion or portions of a document or material on a page qualifies
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for protection, the Designating Party also must clearly identify the protected portion(s)
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(e.g., by making appropriate markings in the margins).
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A Party or non-party that makes original Discovery Material available for
inspection need not designate them for protection until after the inspecting Party has
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indicated which Discovery Material it seeks to have copied and produced. During the
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inspection and before the designation, all of the Discovery Material made available for
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inspection shall be deemed “Confidential.” After the inspecting Party has identified
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the Discovery Material it seeks to have copied and produced, the Designating Party
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must determine which, if any, Discovery Material, or portions thereof, qualify for
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protection under this Protective Order. Prior to producing the specified Discovery
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Material, the Designating Party must affix the appropriate “Confidential” legend
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prominently on each page as set forth above.
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4.2(b) For Discovery Material in the form of testimony given in
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deposition or in other pretrial proceedings, that the Party or non-party offering the
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testimony identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony, and further specify any portions of the testimony
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that qualify as “Confidential” information.
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Any Party may also designate testimony that is entitled to protection by
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notifying all Parties in writing within twenty (20) days of receipt of the transcript, of
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the specific pages and lines of the transcript that should be treated as “Confidential”
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thereafter. Each Party shall attach a copy of such written notice or notices to the face
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of the transcript and each copy thereof in its possession, custody, or control. Unless
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otherwise indicated, all deposition transcripts shall be treated as “Confidential” for a
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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period of twenty (20) days after the receipt of the transcript. This preliminary
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treatment, however, shall not limit a deponent’s right to review the transcript of his or
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her deposition.
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Transcript pages containing Protected Material must be separately bound by the
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court reporter, who must prominently affix on each such page the legend
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“Confidential” as instructed by the Party or non-party offering or sponsoring the
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witness or presenting the testimony.
4.2(c) For Discovery Material produced other than in
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documentary or testimony form, and for any other tangible items, that the Designating
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Party affix in a prominent place on the exterior of the container in which or disk (or
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similar device) on which the information or item is stored the legend “Confidential.”
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If only portions of the information or item warrant protection, the Designating Party,
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to the extent practicable, shall identify the protected portions, specifying whether they
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qualify as “Confidential.”
4.3
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Inadvertent Failures to Designate. An inadvertent failure to
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designate qualified information or items as “Confidential” does not, standing alone,
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waive the Designating Party’s right to secure protection under this protective order for
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such material. If any Discovery Material is appropriately designated as “Confidential”
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after the material was initially produced, the Receiving Party, on notification of the
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designation, must make reasonable efforts to assure that the material is treated in
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accordance with the provisions of this protective order.
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5.0
Challenging Confidentiality Designations.
5.1
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Timing of Challenges. Unless a prompt challenge to a Designating
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Party’s confidentiality designation is necessary to avoid foreseeable substantial
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unfairness, unnecessary economic burdens, or a later significant disruption or delay of
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the litigation, a Party does not waive its right to challenge a confidentiality designation
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by electing not to mount a challenge promptly after the original designation is
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disclosed.
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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5.2
Meet and Confer. Any Party that reasonably and in good faith
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believes designated Discovery Material is not “Confidential” and therefore not
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appropriately designated as “Confidential” as the case may be, must serve a written
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objection to such designation. The objecting Party’s written objection must set forth,
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with reasonable particularity, the legal basis for challenging the designation. Within
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ten business days of receipt of any Parties’ objection, the Designating Party must meet
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and confer regarding the designation. Thereafter, and only thereafter, if the Parties
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cannot resolve their dispute regarding the designation of any Discovery Materials as
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“Confidential”, then the Designating Party must make a request to the Court to protect
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550 South Hope Street, Suite 2000
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the designated Discovery Material. During the pendency of any request for judicial
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protection of designated Discovery Material, the objecting Party must treat the
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designated Material as “Confidential”.
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5.3
Judicial Intervention. A Designating Party that elects to protect a
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confidentiality designation may file and serve a motion under the applicable
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California and Local Rules that identifies the challenged Discovery Material and sets
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forth in detail the basis for the designation. Each such motion must be accompanied
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by a competent declaration that affirms that the moving Party has complied with the
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meet and confer requirements imposed in the preceding paragraph, consistent with the
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applicable California and Local Rules. Until the Court rules on the challenge, all
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parties shall continue to afford the Discovery Material in question the level of
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protection to which it is designated by the Designating Party.
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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6.0
Access To And Use Of Protected Material.
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Basic Principles. A Receiving Party may use Protected Material
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that is disclosed or produced by another Party or by a non-party in connection with
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this case only for prosecuting, defending, or attempting to settle this litigation. Such
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Protected Material may be disclosed only to the categories of persons and under the
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conditions described in this Protective Order. When the litigation has been
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terminated, a Receiving Party must comply with the provisions of Section 10 below.
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Protected Material must be maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to persons authorized under this
Hunton & Williams LLP
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627
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protective order.
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6.2
Disclosure of “Confidential” Information or Items. Unless
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otherwise ordered by the Court, or permitted in writing by the Designating Party, a
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Receiving Party may disclose any information or item designated “Confidential” only
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to the following:
6.2(a) The Receiving Party, who may share confidential
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information and items with its officers, directors, and employees (including In-House
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Counsel) to whom disclosure is reasonably necessary for this litigation;
6.2(b) Outside Counsel in this litigation, as well as its employees
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to whom it is reasonably necessary to disclose the information for this litigation;
6.2(c) Experts (as defined in this protective order) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and
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who have signed the “Agreement to Be Bound by Protective Order” (attached as
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Exhibit A);
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6.2(d) The Court and its personnel;
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6.2(e) Court reporters, their staffs, and professional vendors to
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whom disclosure is reasonably necessary for this litigation;
6.2(f) During their depositions, witnesses in the action to whom
disclosure is reasonably necessary. Pages of transcribed deposition testimony or
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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exhibits to depositions that contain Protected Material must be separately bound by
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the court reporter and may not be disclosed to anyone except as permitted under this
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protective order.
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6.2(g) The author of or recipient of the Protected Material or the
original source of the information;
6.2(h) Trial witnesses, deponents, and putative class members,
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provided, however, that the deponent, witness, or putative class member is expressly
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told that the information is confidential and subject to the terms of this Protective
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Order and then signs the 'Agreement to Be Bound by Protective Order' and not reveal
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550 South Hope Street, Suite 2000
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or otherwise communicate to anyone or utilize any of the information designated
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'Confidential' that is disclosed to them except in accordance with the terms of this
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Protective Order. In any event, Defendant's Protected Material containing information
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about a putative class member's personalized information (e.g., his or her
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compensation, job expectations and performance, FOCUS and other activity
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databases, customers, pricing agreements) may not be disclosed by Plaintiff to other
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putative class members, unless the original putative class member consents.
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Defendant's Protected Material containing policies or memoranda directed at
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employees, generally, may be disclosed by Plaintiff to other putative class members,
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subject to an exception: Protected Material containing policies or memoranda
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directed at employees, generally, may not be disclosed by Plaintiff to any putative
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class member no longer employed by Defendant, unless a particular policy or
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memoranda was issued during the period when the ex-employee was an active
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employee, in which case that policy or memoranda may be disclosed to that
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employee/putative class member. For purposes of this subsection, the term 'putative
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class members' includes class members, should the court certify the proposed class.
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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7.0
Protected Material Subpoenaed Or Ordered Produced In Other
Litigation.
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If a Receiving Party is served with a subpoena or a Court order issued in other
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litigation that would compel disclosure of any information or items designated in this
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action as “Confidential,” the Receiving Party must immediately notify the Designating
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Party, in writing and in no event more than five (5) court days after receiving the
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subpoena or Court order. Such notification must include a copy of the subpoena or
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Court order.
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The Receiving Party also must immediately inform in writing the Party who
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caused the subpoena or order to issue in the other litigation that some or all the
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Protected Material covered by the subpoena or order is the subject of this protective
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order. In addition, the Receiving Party must deliver a copy of this protective order
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promptly to the Party in the other action that caused the subpoena or order to issue.
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The purpose of imposing these duties is to alert the interested parties to the
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existence of this protective order and to afford the Designating Party in this case an
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opportunity to try to protect its confidentiality interests in the Court from which the
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subpoena or order issued. The Designating Party shall bear the burdens and the
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expenses of seeking protection in that court of its Protected Material – and nothing in
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these provisions should be construed as authorizing or encouraging a Receiving Party
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in this action to disobey a lawful directive from another Court.
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8.0
Unauthorized Disclosure Of Protected Material.
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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protective order, the Receiving Party must immediately (a) notify in writing the
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Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
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copies of the Protected Material, (c) inform the person or persons to whom
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unauthorized disclosures were made of all the terms of this Order, and (d) request
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such person or persons to execute the “Acknowledgment and Agreement to Be
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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Bound” (attached as Exhibit A).
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9.0
Filing Protected Material.
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In the event that counsel for any Party desires to file with the Court any
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document which includes any Protected Material, counsel must follow the procedure
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set forth in Local Rule 79-5 of the United States District Court for the Central
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District of California.
10.0 Final Disposition.
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Unless otherwise ordered or agreed in writing by the Designating Party, after
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the final termination of this litigation, including any appeals, if a Designating Party
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550 South Hope Street, Suite 2000
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requests in writing the return or destruction of any or all of its Protected Material to
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the Receiving Party, within thirty (30) days of such request, the Receiving Party must
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submit a written certification, under penalty of perjury, to the Designating Party that
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all Protected Material was returned or destroyed, including any copies, abstracts,
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compilations, summaries or other forms of reproducing or capturing any of the
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Protected Material. Notwithstanding this provision, Outside Counsel may retain an
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archival set of copies of Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Protective Order.
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11.0 Inadvertent Production of Privileged Documents.
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Inadvertent production of any document or information that a Party later claims
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should not have been produced because of a privilege, including but not limited to
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attorney-client or work product privilege (“Inadvertently Produced Privileged
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Document”), will not be deemed to waive any privilege for that Inadvertently
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Produced Privileged Document, for any associated or related undisclosed
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communications or Document(s), or for the subject matter of the Inadvertently
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Produced Privileged Document(s), if the producing party took precautions to avoid
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such inadvertent disclosure and if, upon becoming aware of the disclosure, requests
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return of the Inadvertently Produced Privileged Document(s).
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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The parties agree that one “precaution” that satisfies the preceding paragraph is
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for Sunrise Senior Living, Inc.’s counsel to assign an attorney or person, subject to the
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supervision of an attorney, to review the documents before such documents are
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produced to Plaintiff.
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A request for the return of an Inadvertently Produced Privileged Document
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shall identify the document inadvertently produced and the basis for withholding such
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document from production. If a Party requests the return, pursuant to this paragraph,
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of any Inadvertently Produced Privileged Document then in the custody of another
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party, the possessing party shall within three (3) days return to the requesting Party the
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Inadvertently Produced Privileged Document and all copies thereof and shall not
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make use of such documents or information in this proceeding or otherwise. The
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Party returning such material may then move the Court for an order compelling
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production of the documents or information, but said party shall not assert as a ground
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for entering such an order the fact or circumstances of the inadvertent production.
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12.0 Miscellaneous.
12.1 Right to Further Relief. Nothing in this protective order abridges
the right of any person to seek its modification by the Court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of
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this protective order, no Party waives any right it otherwise would have to object to
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producing any Discovery Material on any ground not addressed in this protective
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order. Similarly, no Party waives any right to object on any ground to use in evidence
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of any of the Discovery Material covered by this protective order.
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IT IS SO ORDERED.
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ANDREW J. WISTRICH
_______________________________
Honorable Andrew J. Wistrich
United States Magistrate Judge
DATED: September 27, 2011
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[PROPOSED] ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL INFORMATION
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EXHIBIT A
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Agreement To Be Bound By Protective Order
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I, ___________________, do solemnly swear that I am fully familiar with the
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terms of the Protective Order entered in Janet M. Feely v. Sunrise Senior Living, Inc.,
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Case No. LACV11-6601 SVW (AJWx), United States District Court for the Central
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District of California and hereby agree to comply with and be bound by the terms and
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conditions of the Protective Order unless and until modified by further order of the
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Parties or this Court. I hereby consent to the jurisdiction of said Court for purposes of
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550 South Hope Street, Suite 2000
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enforcing this Protective Order.
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Signature:
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Printed Name:
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Dated:
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EXHIBIT A - AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
EXHIBIT A
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