Fernandez v. Progressive Management Systems et al, No. 3:2021cv00841 - Document 70 (S.D. Cal. 2023)
Court Description: ORDER granting 69 Joint Motion for Protective Order. Signed by Magistrate Judge William V. Gallo on 5/17/2023. (djk)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 HECTOR FERNANDEZ, individually and on behalf of all others similarly situated, 13 14 15 16 17 20 21 22 23 24 25 26 27 28 ORDER ON JOINT MOTION FOR PROTECTIVE ORDER Plaintiff, v. PROGRESSIVE MANAGEMENT SYSTEMS and EMERGENCY AND ACUTE CARE MEDICAL CORP., Defendants. 18 19 Case No.: 21-CV-841-BEN-WVG Before the Court is the Parties’ Joint Motion for Protective Order (“Joint Motion”). (Doc. No. 69.) The Joint Motion seeks to preserve the confidentiality of certain documents and information to be exchanged in the course of this litigation. Having reviewed and considered the Parties’ submission, the Court finds the Joint Motion complies with all applicable rules, including this Court’s Civil Chambers Rule V: Stipulated Protective Order Provisions for Filing Documents under Seal. Accordingly, the Court GRANTS the Parties’ Joint Motion. Upon issuance of this Order, the following language, as agreed to by the Parties and reflected in their proposed order lodged with this Court’s Chambers, shall become enforceable: 1 21-CV-841-BEN-WVG 1 The Court recognizes that at least some of the documents and information 2 (“materials”) being sought through discovery in the above-captioned action are, for 3 competitive reasons, normally kept confidential by the parties. The parties have agreed to 4 be bound by the terms of this Protective Order (“Order”) in this action. 5 The materials to be exchanged throughout the course of the litigation between the 6 parties may contain trade secret or other confidential research, technical, cost, price, 7 marketing or other commercial information, as is contemplated by Federal Rule of Civil 8 Procedure 26(c)(1)(G), and personally identifying information of Plaintiff and other 9 individuals. The purpose of this Order is to protect the confidentiality of such materials as 10 11 much as practical during the litigation. THEREFORE: 12 13 DEFINITIONS 1. The term “confidential information” will mean and include information 14 contained or disclosed in any materials, including documents, portions of documents, 15 answers to interrogatories, responses to requests for admissions, trial testimony, deposition 16 testimony, and transcripts of trial testimony and depositions, including data, summaries, 17 and compilations derived therefrom that is deemed to be confidential information by any 18 party to which it belongs. 19 2. The term “materials” will include, but is not be limited to: documents; 20 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other 21 material that identify customers or potential customers; price lists or schedules or other 22 matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; 23 contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk 24 diaries; appointment books; expense accounts; recordings; photographs; motion pictures; 25 compilations from which information can be obtained and translated into reasonably usable 26 form through detection devices; sketches; drawings; notes (including laboratory notebooks 27 and records); reports; instructions; disclosures; other writings; models and prototypes and 28 other physical objects. 2 21-CV-841-BEN-WVG 1 3. The term “counsel” will mean outside counsel of record, and other attorneys, 2 paralegals, secretaries, and other support staff employed in the following law firms: 3 Schonbrun Seplow Harris Hoffman & Zeldes, LLP; Sessions Israel & Shartle, LLC; and 4 Wolfe & Wyman LLP and all in-house attorneys and staff. 5 6 GENERAL RULES 4. Each party to this litigation that produces or discloses any materials, answers 7 to interrogatories, responses to requests for admission, trial testimony, deposition 8 testimony, and transcripts of trial testimony and depositions, or information that the 9 producing party believes should be subject to this Protective Order may designate the same 10 as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY.” 11 a. Designation as “CONFIDENTIAL”: Any party may designate 12 information as “CONFIDENTIAL” only if, in the good faith belief of such party and its 13 counsel, the unrestricted disclosure of such information could be potentially prejudicial to 14 the business or operations of such party or to Plaintiff or any other individual. 15 b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any 16 party may designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” only if, 17 in the good faith belief of such party and its counsel, the information is among that 18 considered to be most sensitive by the party, including but not limited to trade secret or 19 other confidential research, development, financial or other commercial information, or 20 personal information of Plaintiff and other individuals. 21 5. In the event the producing party elects to produce materials for inspection, no 22 marking need be made by the producing party in advance of the initial inspection. For 23 purposes of the initial inspection, all materials produced will be considered as 24 “CONFIDENTIAL - FOR COUNSEL ONLY,” and must be treated as such pursuant to 25 the terms of this Order. Thereafter, upon selection of specified materials for copying by the 26 inspecting party, the producing party must, within a reasonable time prior to producing 27 those materials to the inspecting party, mark the copies of those materials that contain 28 confidential information with the appropriate confidentiality marking. 3 21-CV-841-BEN-WVG 1 2 6. Whenever a deposition taken on behalf of any party involves a disclosure of confidential information of any party: 3 a. the deposition or portions of the deposition must be designated as 4 containing confidential information subject to the provisions of this 5 Order; such designation must be made on the record whenever possible, 6 but a party may designate portions of depositions as containing 7 confidential information after transcription of the proceedings; [A] 8 party will have until fourteen (14) days after receipt of the deposition 9 transcript to inform the other party or parties to the action of the 10 portions of the transcript to be designated “CONFIDENTIAL” or 11 “CONFIDENTIAL - FOR COUNSEL ONLY.” 12 b. the disclosing party will have the right to exclude from attendance at 13 the deposition, during such time as the confidential information is to be 14 disclosed, any person other than the deponent, counsel (including their 15 staff and associates), the court reporter, and the person(s) agreed upon 16 pursuant to paragraph 8 below; and c. 17 the originals of the deposition transcripts and all copies of the 18 deposition 19 “CONFIDENTIAL - FOR COUNSEL ONLY,” as appropriate, and the 20 original or any copy ultimately presented to a court for filing must not 21 be filed unless it can be accomplished under seal, identified as being 22 subject to this Order, and protected from being opened except by order 23 of this Court. 24 7. must bear the legend “CONFIDENTIAL” or All confidential information designated as “CONFIDENTIAL” or 25 “CONFIDENTIAL FOR COUNSEL ONLY” must not be disclosed by the receiving party 26 to anyone other than those persons designated within this order and must be handled in the 27 manner set forth below and, in any event, must not be used for any purpose other than in 28 connection with this litigation, unless and until such designation is removed either by 4 21-CV-841-BEN-WVG 1 agreement of the parties, or by order of the Court. 2 8. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” must 3 be viewed only by counsel (as defined in paragraph 3) of the receiving party, and by 4 independent experts under the conditions set forth in this Paragraph. The right of any 5 independent expert to receive any confidential information will be subject to the advance 6 approval of such expert by the producing party or by permission of the Court. The party 7 seeking approval of an independent expert must provide the producing party with the name 8 and curriculum vitae of the proposed independent expert, and an executed copy of the form 9 attached hereto as Exhibit A, in advance of providing any confidential information of the 10 producing party to the expert. Any objection by the producing party to an independent 11 expert receiving confidential information must be made in writing within fourteen (14) 12 days following receipt of the identification of the proposed expert. Confidential 13 information may be disclosed to an independent expert if the fourteen (14) day period has 14 passed and no objection has been made. The approval of independent experts must not be 15 unreasonably withheld. 16 9. Information designated “confidential” must be viewed only by counsel (as 17 defined in paragraph 3) of the receiving party, by independent experts (pursuant to the 18 terms of paragraph 8), by court personnel, and by the additional individuals listed below, 19 provided each such individual has read this Order in advance of disclosure and has agreed 20 in writing to be bound by its terms: a) 21 Executives who are required to participate in policy decisions with reference to this action; 22 b) 23 Technical personnel of the parties with whom Counsel for the parties 24 find it necessary to consult, in the discretion of such counsel, in 25 preparation for trial of this action; and c) 26 identified above. 27 28 Stenographic and clerical employees associated with the individuals /// 5 21-CV-841-BEN-WVG 1 10. With respect to material designated “CONFIDENTIAL” or 2 “CONFIDENTIAL – FOR COUNSEL ONLY,” any person indicated on the face of the 3 document to be its originator, author or a recipient of a copy of the document, may be 4 shown the same. 5 11. All information which has been designated as “CONFIDENTIAL” or 6 “CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party, and 7 any and all reproductions of that information, must be retained in the custody of the counsel 8 for the receiving party identified in paragraph 3, except that independent experts authorized 9 to view such information under the terms of this Order may retain custody of copies such 10 11 as are necessary for their participation in this litigation. 12. No document shall be filed under seal unless counsel secures a court order 12 allowing the filing of a document under seal. An application to file a document under seal 13 shall be served on opposing counsel, and on the person or entity that has custody and 14 control of the document, if different from opposing counsel. If opposing counsel, or the 15 person or entity who has custody and control of the document, wishes to oppose the 16 application, he/she must contact the chambers of the judge who will rule on the application, 17 to notify the judge’s staff that an opposition to the application will be filed. 18 13. At any stage of these proceedings, any party may object to a designation of 19 the materials as confidential information. The party objecting to confidentiality must 20 notify, in writing, counsel for the designating party of the objected-to materials and the 21 grounds for the objection. If the dispute is not resolved consensually between the parties 22 within seven (7) days of receipt of such a notice of objections, the designating party may 23 move the Court for a ruling on the objection. The materials at issue must be treated as 24 confidential information, as designated by the designating party, until the Court has ruled 25 on the objection or the matter has been otherwise resolved. 26 14. All confidential information must be held in confidence by those inspecting 27 or receiving it, and must be used only for purposes of this action. Counsel for each party, 28 and each person receiving confidential information must take reasonable precautions to 6 21-CV-841-BEN-WVG 1 prevent the unauthorized or inadvertent disclosure of such information. If confidential 2 information is disclosed to any person other than a person authorized by this Order, the 3 party responsible for the unauthorized disclosure must immediately bring all pertinent facts 4 relating to the unauthorized disclosure to the attention of the other parties and, without 5 prejudice to any rights and remedies of the other parties, make every effort to prevent 6 further disclosure by the party and by the person(s) receiving the unauthorized disclosure. 7 15. No party will be responsible to another party for disclosure of confidential 8 information under this Order if the information in question is not labeled or otherwise 9 identified as such in accordance with this Order. 10 16. If a party, through inadvertence, produces any confidential information 11 without labeling or marking or otherwise designating it as such in accordance with this 12 Order, the designating party may give written notice to the receiving party that the 13 document or thing produced is deemed confidential information, and that the document or 14 thing produced should be treated as such in accordance with that designation under this 15 Order. The receiving party must treat the materials as confidential, once the designating 16 party so notifies the receiving party. If the receiving party has disclosed the materials before 17 receiving the designation, the receiving party must notify the designating party in writing 18 of each such disclosure. Counsel for the parties will agree on a mutually acceptable manner 19 of labeling or marking the inadvertently produced materials as “CONFIDENTIAL” or 20 “CONFIDENTIAL - FOR COUNSEL ONLY - SUBJECT TO PROTECTIVE ORDER." 21 17. Nothing within this order will prejudice the right of any party to object to the 22 production of any discovery material on the grounds that the material is protected as 23 privileged or as attorney work product. 24 18. Nothing in this Order will bar counsel from rendering advice to their clients 25 with respect to this litigation and, in the course thereof, relying upon any information 26 designated as confidential information, provided that the contents of the information must 27 not be disclosed. 28 7 21-CV-841-BEN-WVG 1 19. This Order will be without prejudice to the right of any party to oppose 2 production of any information for lack of relevance or any other ground other than the mere 3 presence of confidential information. The existence of this Order must not be used by any 4 party as a basis for discovery that is otherwise improper under the Federal Rules of Civil 5 Procedure. 6 7 20. Nothing within this order will be construed to prevent disclosure of confidential information if such disclosure is required by law or by order of the Court. 8 21. Upon final termination of this action, including any and all appeals, counsel 9 for each party must, upon request of the producing party, return all confidential information 10 to the party that produced the information, including any copies, excerpts, and summaries 11 of that information, or must destroy same at the option of the receiving party, and must 12 purge all such information from all machine-readable media on which it resides. 13 Notwithstanding the foregoing, counsel for each party may retain all pleadings, briefs, 14 memoranda, motions, and other documents filed with the Court that refer to or incorporate 15 confidential information, and will continue to be bound by this Order with respect to all 16 such retained information. Further, attorney work product materials that contain 17 confidential information need not be destroyed, but, if they are not destroyed, the person 18 in possession of the attorney work product will continue to be bound by this Order with 19 respect to all such retained information. 22. 20 The restrictions and obligations set forth within this order will not apply to 21 any information that: (a) the parties agree should not be designated confidential 22 information; (b) the parties agree, or the Court rules, is already public knowledge; (c) the 23 parties agree, or the Court rules, has become public knowledge other than as a result of 24 disclosure by the receiving party, its employees, or its agents in violation of this Order; or 25 (d) has come or will come into the receiving party's legitimate knowledge independently 26 of the production by the designating party. Prior knowledge must be established by pre- 27 production documentation. 28 /// 8 21-CV-841-BEN-WVG 1 23. The restrictions and obligations within this order will not be deemed to 2 prohibit discussions of any confidential information with anyone if that person already has 3 or obtains legitimate possession of that information. 4 5 6 7 8 24. Transmission by email or some other currently utilized method of transmission is acceptable for all notification purposes within this Order. 25. This Order may be modified by agreement of the parties, subject to approval by the Court. 26. The Court may modify the terms and conditions of this Order for good cause, 9 or in the interest of justice, or on its own order at any time in these proceedings. The parties 10 prefer that the Court provide them with notice of the Court’s intent to modify the Order 11 12 and the content of those modifications, prior to entry of such an order. IT IS SO ORDERED. 13 Dated: May 17, 2023 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 21-CV-841-BEN-WVG 1 2 EXHIBIT A I, hereby acknowledge that I, _______________________, [NAME] 3 ______________________________________ [POSITION AND EMPLOYER], am 4 about receive Confidential Materials supplied in connection with Hector Fernandez, 5 individually and on behalf of all others similarly situated v. Progressive Management 6 Systems and Emergency And Acute Care Medical Corp., U.S.D.C. (S.D. Cal.) Case No. 7 3:21-cv-00841-ben-WVG. I certify that I understand that the Confidential Materials are 8 provided to me subject to the terms and restrictions of the Stipulation and Protective Order 9 filed in this Proceeding. I have been given a copy of the Stipulation and Protective Order; 10 I have read it, and I agree to be bound by its terms. 11 I understand that Confidential Materials, as defined in the Stipulation and Protective 12 Order, including any notes or other records that may be made regarding any such materials, 13 shall not be Disclosed to anyone except as expressly permitted by the Stipulation and 14 Protective Order. I will not copy or use, except solely for the purposes of this Proceeding, 15 any Confidential Materials obtained pursuant to this Protective Order, except as provided 16 therein or otherwise ordered by the Court in the Proceeding. 17 I further understand that I am to retain all copies of all Confidential Materials 18 provided to me in the Proceeding in a secure manner, and that all copies of such Materials 19 are to remain in my personal custody until termination of my participation in this 20 Proceeding, whereupon the copies of such Materials will be returned to counsel who 21 provided me with such Materials. 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 __________________________. 25 Signature 26 Printed Name & Title 27 Address, City, State, Zip 28 Telephone Number Executed this ___ day of ___________, 2023 at 10 21-CV-841-BEN-WVG
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