Askar v. Health Providers Choice, Inc., No. 5:2019cv06125 - Document 31 (N.D. Cal. 2020)
Court Description: ORDER GRANTING 30 STIPULATED PROTECTIVE ORDER. The filing at 29 is TERMINATED. Signed by Judge Susan van Keulen on 4/28/2020. (svklc2S, COURT STAFF) (Filed on 4/28/2020)
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Askar v. Health Providers Choice, Inc. 1 2 3 4 5 6 7 Doc. 31 Denis S. Kenny, Bar No. 178542 dsk@sfcounsel.com Ryan W. Stahl, Bar No. 267306 rws@sfcounsel.com SCHERER SMITH & KENNY LLP 140 Geary Street, Seventh Floor San Francisco, CA 94108 Phone: (415) 433-1099 Facsimile: (415) 433-9434 Matthew B. Hayes, Bar No. 220639 mhayes@helpcounsel.com Kyle D. Pawlenko, Bar No. 221475 kpawlenko@helpcounsel.com HAYES PAWLENKO LLP 595 E. Colorado Blvd., Suite 303 Pasadena, CA 91101 Phone: (626) 808-4357 Facsimile: (626) 921-4932 Attorneys for Defendant HEALTH PROVIDERS CHOICE, INC. Attorneys for Plaintiff MAHA ASKAR 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 MAHA ASKAR, an individual on behalf of herself and others similarly situated, 14 15 [PROPOSED] STIPULATED PROTECTIVE ORDER Plaintiff, 12 13 Case No.: No. 5:19-cv-06125-BLF vs. HEALTH PROVIDERS CHOICE, INC.; and DOES 1-10, inclusive, Defendants. 16 17 PURPOSES AND LIMITATIONS 18 Disclosure and discovery activity in this action are likely to involve production of 19 confidential, proprietary, or private information for which special protection from public 20 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 21 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 22 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 23 all disclosures or responses to discovery and that the protection it affords from public disclosure 24 and use extends only to the limited information or items that are entitled to confidential treatment 25 under the applicable legal principles. The parties further acknowledge, as set forth in Section 11.3, 26 below, that this Stipulated Protective Order does not entitle them to file confidential information 27 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 1 Dockets.Justia.com 1 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards 2 that will be applied when a party seeks permission from the court to file material under seal. 3 2. DEFINITIONS 4 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information 5 or items under this Order. 6 2.2 7 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil 8 Procedure 26(c). 9 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as 10 their support staff). 11 2.4 12 produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 13 2.5 14 manner in which it is generated, stored, or maintained (including, among other things, testimony, 15 transcripts, and tangible things), that are produced or generated in disclosures or responses to 16 discovery in this matter. 17 2.6 18 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 19 consultant in this action. 20 2.7 21 does not include Outside Counsel of Record or any other outside counsel. 22 2.8 23 not named as a Party to this action. 24 2.9 25 are retained to represent or advise a party to this action and have appeared in this action on behalf 26 of that party or are affiliated with a law firm which has appeared on behalf of that party. Designating Party: a Party or Non-Party that designates information or items that it Disclosure or Discovery Material: all items or information, regardless of the medium or Expert: a person with specialized knowledge or experience in a matter pertinent to the House Counsel: attorneys who are employees of a party to this action. House Counsel Non-Party: any natural person, partnership, corporation, association, or other legal entity Outside Counsel of Record: attorneys who are not employees of a party to this action but 27 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 2 1 2.10 2 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 3 2.11 4 this action. 5 2.12 6 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 7 storing, or retrieving data in any form or medium) and their employees and subcontractors. 8 2.13 9 “CONFIDENTIAL.” 10 2.14 11 Party. 12 3. Party: any party to this action, including all of its officers, directors, employees, Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in Professional Vendors: persons or entities that provide litigation support services (e.g., Protected Material: any Disclosure or Discovery Material that is designated as Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing SCOPE 13 The protections conferred by this Stipulation and Order cover not only Protected Material 14 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 15 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 16 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 17 However, the protections conferred by this Stipulation and Order do not cover the following 18 information: (a) any information that is in the public domain at the time of disclosure to a 19 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 20 a result of publication not involving a violation of this Order, including becoming part of the 21 public record through trial or otherwise; and (b) any information known to the Receiving Party 22 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 23 obtained the information lawfully and under no obligation of confidentiality to the Designating 24 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 25 4. 26 Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 27 shall remain in effect until a Designating Party agrees otherwise in writing or a court order DURATION 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 3 1 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 2 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 3 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 4 including the time limits for filing any motions or applications for extension of time pursuant to 5 applicable law. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- 8 Party that designates information or items for protection under this Order must take care to limit 9 any such designation to specific material that qualifies under the appropriate standards. The 10 Designating Party must designate for protection only those parts of material, documents, items, 11 or oral or written communications that qualify – so that other portions of the material, documents, 12 items, or communications for which protection is not warranted are not swept unjustifiably within 13 the ambit of this Order. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 15 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 16 unnecessarily encumber or retard the case development process or to impose unnecessary 17 expenses and burdens on other parties) expose the Designating Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items that it designated 19 for protection do not qualify for protection, that Designating Party must promptly notify all other 20 Parties that it is withdrawing the mistaken designation. 21 5.2 22 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure 23 or Discovery Material that qualifies for protection under this Order must be clearly so designated 24 before the material is disclosed or produced. 25 Designation in conformity with this Order requires: Manner and Timing of Designations. Except as otherwise provided in this Order (see, 26 (a) for information in documentary form (e.g., paper or electronic documents, but 27 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 4 1 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a 2 portion or portions of the material on a page qualifies for protection, the Producing Party also 3 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 4 margins). 5 A Party or Non-Party that makes original documents or materials available for inspection 6 need not designate them for protection until after the inspecting Party has indicated which material 7 it would like copied and produced. During the inspection and before the designation, all of the 8 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting 9 Party has identified the documents it wants copied and produced, the Producing Party must 10 determine which documents, or portions thereof, qualify for protection under this Order. Then, 11 before 12 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 13 portions of the material on a page qualifies for protection, the Producing Party also must clearly 14 identify the protected portion(s) (e.g., by making appropriate markings in the margins). producing the specified documents, the Producing Party must affix the 15 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 16 Designating Party identify on the record, before the close of the deposition, hearing, or other 17 proceeding, all protected testimony. 18 (c) for information produced in some form other than documentary and for any other 19 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 20 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 21 portion or portions of the information or item warrant protection, the Producing Party, to the 22 extent practicable, shall identify the protected portion(s). 23 5.3 24 qualified information or items does not, standing alone, waive the Designating Party’s right to 25 secure protection under this Order for such material. Upon timely correction of a designation, the 26 Receiving Party must make reasonable efforts to assure that the material is treated in accordance 27 with the provisions of this Order. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 5 1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 6.1 Timing of Challenges. 3 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 4 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 5 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 6 challenge a confidentiality designation by electing not to mount a challenge promptly after the 7 original designation is disclosed. 8 6.2 9 providing written notice of each designation it is challenging and describing the basis for each 10 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 11 recite that the challenge to confidentiality is being made in accordance with this specific 12 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good 13 faith and must begin the process by conferring directly (in voice to voice dialogue; other forms 14 of communication are not sufficient) within 14 days of the date of service of notice. In conferring, 15 the Challenging Party must explain the basis for its belief that the confidentiality designation was 16 not proper and must give the Designating Party an opportunity to review the designated material, 17 to reconsider the circumstances, and, if no change in designation is offered, to explain the basis 18 for the chosen designation. A Challenging Party may proceed to the next stage of the challenge 19 process only if it has engaged in this meet and confer process first or establishes that the 20 Designating Party is unwilling to participate in the meet and confer process in a timely manner. 21 6.3 22 the Challenging Party shall file and serve a motion to challenge the designation of confidentiality 23 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 24 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 25 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 26 accompanied by a competent declaration affirming that the movant has complied with the meet 27 and confer requirements imposed in the preceding paragraph. Any Party or Non-Party may challenge a designation of Meet and Confer. The Challenging Party shall initiate the dispute resolution process by Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 6 1 The burden of persuasion in any such challenge proceeding shall be on the Designating 2 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 4 sanctions. Unless the Designating Party has waived the confidentiality designation, all parties 5 shall continue to afford the material in question the level of protection to which it is entitled under 6 the Producing Party’s designation until the court rules on the challenge. 7 7. ACCESS TO AND USE OF PROTECTED MATERIAL 8 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 9 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 10 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 11 to the categories of persons and under the conditions described in this Order. When the litigation 12 has been terminated, a Receiving Party must comply with the provisions of section 12 below 13 (FINAL DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving Party at a location and 15 in a secure manner that ensures that access is limited to the persons authorized under this Order. 16 7.2 17 court or permitted in writing by the Designating Party, a Receiving Party may disclose any 18 information or item designated “CONFIDENTIAL” only to: Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 19 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 20 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 21 for this litigation; 22 (b) the officers, directors, and employees (including House Counsel) of the Receiving 23 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 24 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 26 reasonably necessary for this litigation and who have signed the “Acknowledgment and 27 Agreement to Be Bound” (Exhibit A); 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 7 1 (d) the court and its personnel; 2 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 3 Professional Vendors to whom disclosure is reasonably necessary for this litigation; 4 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 5 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 6 unless otherwise agreed by the Designating Party or ordered by the court. 7 (g) the author or recipient of a document containing the information or a custodian or 8 other person who otherwise possessed or knew the information. 9 8. 10 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 11 If a Party is served with a subpoena or a court order issued in other litigation that compels 12 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 13 must: 14 15 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 16 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 17 other litigation that some or all of the material covered by the subpoena or order is subject to this 18 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 19 20 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 21 If the Designating Party timely seeks a protective order, the Party served with the 22 subpoena or court order shall not produce any information designated in this action as 23 “CONFIDENTIAL” before a determination by the court from which the subpoena or order issued, 24 unless the Party has obtained the Designating Party’s permission. The Designating Party shall 25 bear the burden and 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 Receiving Party 27 in this action to disobey a lawful directive from another court. 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 8 1 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective 4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 6 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made 7 of all the terms of this Order, and (d) request such person or persons to execute the 8 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 9 10. 10 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 14 provision is not intended to modify whatever procedure may be established in an e-discovery 15 order that provides for production without prior privilege review. Pursuant to Federal Rule of 16 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of 17 a communication or information covered by the attorney-client privilege or work product 18 protection, the parties may incorporate their agreement in the stipulated protective order 19 submitted to the court. 20 11. MISCELLANEOUS 21 11.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its 22 modification by the court in the future. 23 11.2 24 Party waives any right it otherwise would have to object to disclosing or producing any 25 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 26 no Party waives any right to object on any ground to use in evidence of any of the material covered 27 by this Protective Order. Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 9 1 11.3 2 court order secured after appropriate notice to all interested persons, a Party may not file in the 3 public record in this action any Protected Material. A Party that seeks to file under seal any 4 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 5 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 6 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing 7 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled 8 to protection under the law. If a Receiving Party's request to file Protected Material under seal 9 pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the 10 information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed 11 by the court. 12 12. Filing Protected Material. Without written permission from the Designating Party or a FINAL DISPOSITION 13 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 14 Receiving Party must return all Protected Material to the Producing Party or destroy such 15 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 16 compilations, summaries, and any other format reproducing or capturing any of the Protected 17 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must if 18 requested submit a written certification to the Producing Party (and, if not the same person or 19 entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where 20 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 21 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other 22 format reproducing or capturing any of the Protected Material. Notwithstanding this provision, 23 Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, 24 and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 25 reports, attorney work product, and consultant and expert work product, even if such materials 26 contain Protected Material. Any such archival copies that contain or constitute Protected Material 27 remain subject to this Protective Order as set forth in Section 4 (DURATION). 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 10 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: April 23, 2020 SCHERER SMITH & KENNY LLP 4 5 6 /s/ Denis S. Kenny 7 Denis S. Kenny 8 Attorney for Defendant 9 10 Dated: April 23, 2020 HAYES PAWLENKO LLP 11 12 13 /s/ Matthew B. Hayes 14 Matthew B. Hayes 15 Attorney for Plaintiff 16 17 18 PURSUANT TO STIPULATION, IT IS SO ORDERED. 19 20 April 28, 2020 DATED: ________________________ ____________________________________________ 21 Hon. Susan van Keulen, United States Magistrate Judge 22 23 24 25 26 27 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 11 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 __________________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Northern District of California on 7 ___________________[date] in the case of Maha Askar v. Health Providers Choice, Inc., Case 8 No. 5:19-cv-06125-BLF. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose 11 in any manner any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: _______________________________ 24 Signature: __________________________________ 25 26 27 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 12 1 Filer’s Attestation 2 I, Ryan W. Stahl, am the ECF user whose identification and password are being used to 3 file the parties’ [Proposed] Stipulated Protective Order. In compliance with Civil Local Rule 5- 4 1(i)(3), I hereby attest the concurrence in the filing of the document has been obtained from each 5 of the other signatories. 6 7 S:\DOCUMENT\Health Providers Choice, Inc\Working\Pleadings\Working\200423 Askar v. HPC, Inc. - Stipulated Protective Order.docx 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________________________________________________________________________________ [PROPOSED] STIPULATED PROTECTIVE ORDER Case No. 5:19-cv-06125-BLF 13
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