Hilda L Solis v. GreatBanc Trust Company et al
Filing
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PROTECTIVE ORDER 48 by Judge Manuel L. Real. IT IS ORDERED THAT a Protective Order shall be and hereby is entered in this case. (See order for details.) (kti)
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DRINKER BIDDLE & REATH LLP
Joseph C. Faucher (SBN 137353)
Joe.faucher@dbr.com
Ryan R. Salsig (SBN 250830)
Ryan.salsig@dbr.com
1800 Century Park East, Suite 1400
Los Angeles, California 90067
Tel: 310.203.4000; Fax: 310.229.1285
Theodore M. Becker (admitted pro hac vice)
theodore.becker@dbr.com
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606
Tel: 312.569.1301; Fax: 312.569.3301
Attorneys for Defendant GreatBanc Trust Company
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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THOMAS E. PEREZ, Secretary of the Case No. ED-CV12-1648-R (DTBx)
United States Department of Labor,
PROTECTIVE ORDER
Plaintiff,
v.
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GREATBANC TRUST COMPANY, et
al.,
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Defendants.
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The Court having reviewed the Stipulation for Entry of Protective Order (the
“Protective Order”) and good cause appearing therefor:
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IT IS ORDERED THAT a Protective Order shall be and hereby is entered in
this case. The terms of the protective order are as follows:
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1.
Scope of Order.
discovery, all tangible things, all answers to interrogatories, all answers to requests
for admission, all responses to requests for production of documents, all responses
to non-party subpoenas, and all deposition testimony and deposition exhibits, as
well as all information contained therein or derived therefrom, and all copies,
duplicates, extracts, excerpts, notes, summaries, or descriptions thereof (collectively
“Discovery”) shall be subject to this Order.
2.
Confidential Information.
“Confidential Information” as used herein
means information (regardless of how it is generated, stored or maintained) or
tangible things that qualify for protection under Federal Rule of Civil Procedure
26(c). Any party or non-party providing Discovery may designate Confidential
Information pursuant to this Order.
3.
Qualified Persons. “Qualified Persons,” as used herein means:
a.
With respect to information designated as “Confidential”
i.
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Retained counsel for the parties in this litigation and their
respective staff, including but not limited to other counsel,
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paralegals, and legal assistants;
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ii.
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The United States Department of Labor, including attorneys and
employees involved with the Department’s investigation;
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All documents and data produced in the course of
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iii.
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Electronic discovery vendors and data processing personnel only
to the extent that they may load information into and support the
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use of an electronic discovery review platform, litigation
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vendors, court reporters, videographers, and other litigation
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support personnel;
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iv.
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Actual or potential independent experts or consultants (and their
administrative or clerical staff) engaged in connection with this
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litigation (which shall not include the current employees,
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officers, members or agents of parties or affiliates of parties)
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who, prior to any disclosure of Confidential Information to such
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person, have signed a document agreeing to be bound by the
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terms of this Protective Order (attached as Exhibit A) (such
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signed document to be maintained by the attorney retaining such
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person) and, with respect to testifying experts, have been
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designated in writing by notice to all counsel at least five (5)
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business days prior to any disclosure of Confidential
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Information to such persons, although in appropriate cases,
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parties may request a shortened pre-disclosure period and such
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request will not be unreasonably denied;
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v.
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This Court and its staff and any other tribunal or dispute
resolution officer duly appointed or assigned in connection with
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this litigation;
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vi.
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The party, if a natural person;
vii.
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If the party is an entity, officers, directors, or employees of the
party who are actively involved in the prosecution or defense of
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this case;
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viii. Persons regarding whom the Confidential Information pertains;
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ix.
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A person who in good faith a party believes was an author,
addressee, or intended or authorized recipient of the
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Confidential Information;
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x.
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A person who in good faith a party believes already has
knowledge of the Confidential Information;
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xi.
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Potential witnesses, experts, and consultants, but only to the
extent reasonably deemed necessary by counsel for the
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prosecution, defense or settlement of this litigation; and
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xii.
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Non-parties who are testifying at a deposition in this litigation
and their counsel who agree to keep the information
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confidential, provided that such persons may see the
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Confidential Information but may not retain a copy of the
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Confidential Information.
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Prior to the disclosure of any Confidential Information to any
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individual entitled to review such information pursuant to subparagraph a(iii)
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and a(viii) – a(xii), such individual shall be provided with a copy of this
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Order, and he or she shall sign a document agreeing to be bound by the terms
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of this Protective Order (attached as Exhibit A), which shall be retained by
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the party or attorney obtaining it.
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b.
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Such other person as this Court may designate after notice and an
opportunity to be heard or to whom the Parties agree in writing.
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4.
Designation Criteria
a.
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Nonconfidential Information.
Confidential Information shall not
include information that:
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i.
is lawfully in the public domain at the time of disclosure;
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ii.
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the other party;
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iii.
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the receiving party can show by written document that the
information was in its rightful and lawful possession at the time
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of disclosure; or
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iv.
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lawfully comes into the receiving party’s possession subsequent
to the time of disclosure from another source without restriction
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as to disclosure, provided such third party has the right to make
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lawfully becomes part of the public domain through no fault of
the disclosure to the receiving party.
b.
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Confidential Information.
A party or non-party shall designate as
Confidential Information only such information that the party or non-
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party in good faith believes in fact is confidential. Information that is
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generally available to the public, such as public filings, website
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materials, and the like, shall not be designated as Confidential.
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Information and documents that may be designated as Confidential
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Information include, but are not limited to, trade secrets, nonpublic
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technical information, nonpublic commercial information, proprietary
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financial information, operational data, business plans, personal
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information that is protected by law, and other sensitive information
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that, if not restricted as set forth in this Protective Order, may subject
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the producing or disclosing person to competitive or financial injury or
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potential legal liability. Correspondence and other communications
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between the parties or with non-parties may be designated as
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Confidential Information if the communication was made with the
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understanding or reasonable expectation that the information would
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not become generally available to the public.
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5.
Use of Confidential Information. All Confidential Information provided by
any party or nonparty in the course of this litigation shall be used solely for the
purpose of preparation, trial and appeal of this litigation and for no other purpose,
and shall not be disclosed except in accordance with the terms hereof.
Notwithstanding anything to the contrary herein, nothing in this Protective Order
shall restrict a party’s ability to use or disclose its own documents or proprietary
information.
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6.
Marking of Documents.
Documents produced in this action may be
designated by any party or non-party as Confidential Information by placing or
affixing on the document or document image, in a location that does not obliterate
or obscure any information from the source document, the word “Confidential.”
Files produced in native format shall be named with a sequential Bates number
followed by the applicable Confidentiality designation and file extension.
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7.
Copies of Confidential Information.
All copies, duplicates, extracts,
excerpts, notes, summaries, or descriptions of Confidential Information shall be
immediately affixed with the appropriate designation of “Confidential” if such
words do not already appear. To the extent that the receiving party subsequently
generates any permitted copies of electronically stored information produced in
native format, the receiving party shall ensure that all such copies are clearly
designated
with
the
appropriate
confidentiality
designation.
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8.
Documents Produced for Inspection Prior to Designation. In the event
documents are produced for inspection prior to designation, the documents shall be
treated as “Confidential” during inspection.
The party who inspected the
documents shall treat any notes, summaries, or descriptions of any documents
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produced for inspection at the party’s facilities as “Confidential” until the
documents
have
been
copied
and
produced.
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9.
Disclosure at Depositions. Information disclosed at (a) the deposition of a
party or one of its present or former officers, directors, employees, agents or
independent experts retained by counsel for the purpose of this litigation, or (b) the
deposition of a non-party may be designated by any party or non-party, or their
respective counsel, as Confidential Information by indicating on the record at the
deposition that the testimony is “Confidential” and is subject to the provisions of
this Order. Any testimony which describes a document or data which has been
designated as Confidential Information as described above shall also be deemed to
be designated with the same level of Confidentiality as the produced document or
data.
Any party or non-party may also designate information disclosed at a
deposition as Confidential Information by notifying all parties in writing not later
than 30 days of receipt of the final transcript of the specific pages and lines of the
transcript that should be treated as Confidential Information thereafter. Each party
or non-party shall attach a copy of such written notice or notices to the face of the
transcript and each copy thereof in its possession, custody or control.
All
deposition transcripts shall be treated as “Confidential” for a period of thirty (30)
days after the initial receipt of the final transcript. This section is subject to the
provisions regarding unintentional disclosure.
Confidential Information may be used at the deposition of a fact witness
only to the extent that the witness was an author, addressee, or intended or
authorized recipient of the Confidential Information, was involved in the subject
matter described therein, is employed by the party who produced the Confidential
Information, or if the producing party or non-party consents to such disclosure.
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Counsel for a party or a non-party shall have the right to exclude from
depositions any person who is not authorized to receive Confidential Information
pursuant to this Protective Order, but such right of exclusion shall be applicable
only during periods of examination or testimony during which Confidential
Information is being used or discussed.
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Disclosure to Qualified Persons. Confidential Information shall not be
disclosed or made available by the receiving party to persons other than Qualified
Persons.
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Subpoenas or Other Demand for Information. In the event of a receipt of
a subpoena, document demand, similar legal process in another proceeding
(including any proceeding before any court, arbitral panel, regulatory agency, law
enforcement, or administrative body) or other disclosure compelled by law or court
order seeking Confidential Information, the receiving party will so notify the
producing party as promptly as practicable (if at all possible, prior to making such
disclosure) and the producing party may seek a protective order or confidential
treatment of such information. The producing party bears the burden of opposing
the subpoena, document demand, legal process, or order. Nothing herein shall be
construed as requiring the recipient or anyone else covered by this Order to
challenge or appeal any subpoena, document demand, legal process, or order
requiring production of Confidential Information, or to subject itself to penalties for
non-compliance with any subpoena, document demand, legal process or order.
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12.
Retention of Copies During this Litigation. Counsel for the parties shall
take reasonable efforts to place all documents designated as “Confidential” in a
secure environment. Any documents produced in this litigation, regardless of
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classification, which are provided to Qualified Persons, shall be maintained only at
the offices of such Qualified Person and only necessary working copies shall be
made of any such documents.
Copies of documents and exhibits containing
Confidential Information may be made, or exhibits prepared by independent copy
services,
printers
or
illustrators
for
the
purpose
of
this
litigation.
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13.
Unintentional Disclosures. Documents unintentionally produced without
designation may be retroactively designated and shall be treated as Confidential
Information from the date written notice of the designation is provided to the
receiving party. Unintentional disclosures of Confidential Information shall not be
deemed to waive a party’s or non-party’s claim of confidentiality, in whole or in
part, as to other material concerning the same or related subject matter. If a
receiving party learns of any unauthorized disclosure of Confidential Information,
the party shall immediately upon learning of such disclosure inform the producing
party or non-party of all pertinent facts relating to such disclosure and shall make
all reasonable efforts to prevent disclosure by each unauthorized person who
received
such
information.
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14.
Consent to Disclosure and Use in Examination. Nothing herein shall
prevent disclosure beyond the terms of this Protective Order if each party or nonparty designating the information as Confidential Information consents to such
disclosure or, if the Court, after notice to all affected parties or non-parties, orders
such disclosures. Nor shall anything herein prevent any counsel of record from
utilizing Confidential Information in the examination or cross-examination of any
person who is indicated on the document as being an author, source or recipient of
the Confidential Information, irrespective of which party produced such
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information.
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15.
Challenging the Designation.
a.
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the propriety of a designation of Confidential Information at the time
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made, and a failure to do so shall not preclude a subsequent challenge
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thereto. In the event any party to this litigation disagrees at any stage
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of these proceedings with the designation of any information as
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Confidential Information, the parties and any affected non-party shall
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first meet and confer, discussing with particularity the material in
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question, the grounds for the challenge, and the grounds for asserting
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that the material is properly designated, and try to resolve such dispute
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in good faith on an informal basis, such as by production of redacted
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copies. If the dispute cannot be resolved, the objecting party may
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move the Court for an order terminating the designated status of such
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information.
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The parties agree to consent to a Court hearing via
telephone, if a hearing proves necessary. The burden of proving the
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propriety of the confidentiality designation made as to such
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information shall remain with the party or non-party asserting
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confidentiality. The disputed information shall remain Confidential
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Confidential Information. A party shall not be obligated to challenge
Information unless or until the Court orders otherwise.
b.
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Qualified Person. In the event that any party in good faith disagrees
with the designation of a person as a Qualified Person or the disclosure
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of particular Confidential Information to such person, the parties and
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any affected non-party shall first try to resolve such dispute in good
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faith on an informal basis. If the dispute cannot be resolved, the
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objecting person may move the Court for an order denying the
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Qualified Person candidate (a) status as a Qualified Person, or (b)
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access to particular Confidential Information. The objecting person
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shall have the burden of demonstrating that disclosure to the disputed
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person would expose the objecting party to the risk of serious harm.
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Upon the timely filing of such a motion, no disclosure of Confidential
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Information shall be made to the disputed person unless and until the
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Court enters an order preserving the designation.
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Manner of Use in Proceedings. In the event a party wishes to use any
Confidential Information in affidavits, declarations, briefs, memoranda of law, or
other papers filed in this litigation, the party shall do one of the following: (1) with
the consent of the producing party or non -party, file only a redacted copy of the
information; (2) where appropriate (e.g., in connection with discovery and
evidentiary motions) provide the information solely for in camera review; or (3)
file such information under seal with the Court consistent with the sealing
requirements
of
the
Court.
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Filing Under Seal. The clerk of this Court is directed to maintain under seal
all documents, transcripts of deposition testimony, answers to interrogatories,
admissions and other papers filed under seal in this litigation that have been
designated, in whole or in part, as Confidential Information by any party to this
litigation
consistent
with
the
sealing
requirements
of
the
Court.
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Return of Documents. Upon written request of the designating party or
non-party made no later than one hundred twenty (120) days after conclusion of this
litigation and any appeal related to it, and subject to a party or non-party’s rights
under any applicable law, regulation or directive to retain Confidential Information
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or copies thereof, any Confidential Information in the possession of any of the
persons specified in paragraph 3 (except subparagraph 3(a)(v)) shall be returned to
the producing party or destroyed, except as this Court may otherwise order or to the
extent such information was used as evidence at any trial or hearing.
Notwithstanding this obligation to return or destroy information, counsel may retain
attorney work product, including document indices, pleadings, motion papers, trial,
deposition transcripts and exhibits, hearing transcripts and exhibits, legal
memoranda, correspondence, expert reports, and consultant and expert work
product, even if such materials contain Confidential Information or references
thereto.
This requirement to return documents does not require a party or
individual subject to this Confidentiality and Protective Order to produce or destroy
any computer archival or backup tapes, archival or backup systems, archival or
backup servers, archival or backup files, any information that is only retrievable
through the use of specialized tools or techniques typically used by a forensic
expert, or any other data that is generally considered not reasonably accessible.
Such material shall continue to be treated as Confidential Information under this
Confidentiality
and
Protective
Order.
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Notwithstanding any provisions of this Protective Order to the contrary, the
parties recognize and acknowledge that the Department of Labor (the
“Department”) (a) may disclose to other state or federal governmental agencies,
both civil and criminal, any material within its possession including any
Confidential Information covered by this Protective Order, in which case the
Department agrees to provide a copy of this Protective Order to any agency
receiving material covered by this Protective Order; (b) may be subject to requests
calling for the disclosure of material covered by the Protective Order pursuant to
the Freedom of Information Act and on other bases, in which case the Department
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will provide reasonable notice of any such request in writing to the party or nonparty who produced such material in order to give the party or non-party an
opportunity to object in writing to the Department’s disclosure of such material;
and (c) will not destroy or return material containing Confidential Information
provided to the Department to the extent that returning or destroying such material
would violate any applicable policy, law or regulation.
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19.
Ongoing Obligations. Insofar as the provisions of this Protective Order, or
any other protective orders entered in this litigation, restrict the communication and
use of the information protected by it, such provisions shall continue to be binding
after the conclusion of this litigation, except that (a) there shall be no restriction on
documents that are used as exhibits in Court unless such exhibits were filed under
seal, and (b) a party or non-party may seek the written permission of the producing
party or order of the Court with respect to dissolution or modification of this, or any
other, protective order.
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20.
Advice to Clients. This Protective Order shall not bar any attorney herein in
the course of rendering advice to his client with respect to this litigation from
conveying to the client the attorney’s evaluation in a general way of Confidential
Information produced or exchanged under the terms of this Protective Order;
provided, however, that in rendering such advice and otherwise communicating
with his client, the attorney shall not disclose the specific contents of any
Confidential Information produced by another party or non-party if such disclosure
would be contrary to the terms of this Protective Order.
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Duty to Ensure Compliance.
Any party designating any person as a
Qualified Person shall have the duty to reasonably ensure that such person observes
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the terms of this Protective Order and shall be responsible upon breach of such duty
for the failure of such person to observe the terms of this Protective Order.
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502(d). Pursuant to Federal Rule of Evidence 502, neither the attorney-client
privilege nor work product privilege is waived by disclosure connected with this
litigation.
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23.
Modification and Exceptions. The parties may, by stipulation, provide for
exceptions to this Protective Order and any party may seek an order of this Court
modifying this Protective Order.
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24.
Non-Waiver of Rights. Nothing contained in this Order shall affect the
right of any person or party to make any objection, claim, or other response to
discovery served on it; shall affect the right of any person or party to make any
objection, claim, or other response to any question at a deposition; shall be
construed as a waiver of any legally cognizable privilege to withhold any document
or information, or of any right which a person or party may have to assert such
privilege at any stage of the proceedings; or shall be construed to prejudice the right
of any person or party to oppose the admissibility or production of documents or
other information on the grounds of lack of relevancy or for any other reason.
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Dated: August 16, 2013
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Manuel Real
United States District Judge
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EXHIBIT A
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CONFIDENTIALITY AGREEMENT
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I have been provided with a copy of the attached Confidentiality and
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Protective Order. I have reviewed its terms, and I agree to abide by those terms.
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Dated: __________________________________
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Signed: __________________________________
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Printed Name: _____________________________
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