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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9 TRACY MEYERS, an individual, Case No. 8:23‐cv‐00636‐FWS‐JDE 10 Plaintiff,

STIPULATED PROTECTIVE

11 v. ORDER

12 THE WHITING‐TURNER 13 CONTRACTING COMPANY, and DOES 1 through 25, 14 Defendants. 15 16 Pursuant to the Parties’ Stipulation (Dkt. 17) and for good cause shown, 17 the Court finds and orders as follows. 18 1. PURPOSES AND LIMITATIONS 19 Discovery in this action may involve production of confidential, 20 proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation 22 may be warranted. Accordingly, the Parties hereby stipulate to and petition 23 the Court to enter the following Stipulated Protective Order. The Parties 24 acknowledge that this Order does not confer blanket protections on all 25 disclosures or responses to discovery and that the protection it affords from 26 public disclosure and use extends only to the limited information or items 27 that are entitled to confidential treatment under the applicable legal 28 principles. 1 2. GOOD CAUSE STATEMENT 2 This action is likely to involve trade secrets, confidential customer 3 information and other valuable research, development, commercial, financial, 4 technical and/or proprietary information for which special protection from 5 public disclosure and from use for any purpose other than prosecution of this 6 action is warranted. Such confidential and proprietary materials and 7 information consist of, among other things, confidential business, personnel, 8 or financial information, construction and engineering plans, specifications, 9 bids, and contract documents, information regarding confidential computer‐ 10 system access, business practices or plans, competitively‐sensitive 11 information about Defendant and its clients and vendors which would cause 12 financial harm to Defendant or its vendors or clients if disclosed, or other 13 confidential research, development, or commercial information (including 14 information implicating privacy rights of third parties), information 15 otherwise generally unavailable to the public, or which may be privileged or 16 otherwise protected from disclosure under state or federal statutes, court 17 rules, case decisions, or common law. Accordingly, to expedite the flow of 18 information, to facilitate the prompt resolution of disputes over 19 confidentiality of discovery materials, to adequately protect information the 20 parties are entitled to keep confidential, to ensure that the parties are 21 permitted reasonable necessary uses of such material in preparation for and 22 in the conduct of trial, to address their handling at the end of the litigation, 23 and serve the ends of justice, a protective order for such information is 24 justified in this matter. It is the intent of the parties that information will not 25 be designated as confidential for tactical reasons and that nothing be so 26 designated without a good faith belief that it has been maintained in a 27 1 confidential, non‐public manner, and there is good cause why it should not 2 be part of the public record of this case. 3 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 4 The parties further acknowledge, as set forth in Section 14.3, below, that 5 this Stipulated Protective Order does not entitle them to file confidential 6 information under seal; Local Civil Rule 79-5 sets forth the procedures that must 7 be followed and the standards that will be applied when a party seeks permission 8 from the court to file material under seal. There is a strong presumption that the 9 public has a right of access to judicial proceedings and records in civil cases. In 10 connection with non-dispositive motions, good cause must be shown to support a 11 filing under seal. See, Kamakana v. City and County of Honolulu, 447 F.3d 1172, 12 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th 13 Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 14 1999) (even stipulated protective orders require good cause showing), and a 15 specific showing of good cause or compelling reasons with proper evidentiary 16 support and legal justification, must be made with respect to Protected Material 17 that a party seeks to file under seal. The parties’ mere designation of Disclosure 18 or Discovery Material as CONFIDENTIAL does not— without the submission 19 of competent evidence by declaration, establishing that the material sought to be 20 filed under seal qualifies as confidential, privileged, or otherwise protectable— 21 constitute good cause. 22 Further, if a party requests sealing related to a dispositive motion or trial, 23 then compelling reasons, not only good cause, for the sealing must be shown, and 24 the relief sought shall be narrowly tailored to serve the specific interest to be 25 protected. See, Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 26 2010). For each item or type of information, document, or thing sought to be 27 filed or introduced under seal, the party seeking protection must articulate 1 compelling reasons, supported by specific facts and legal justification, for the 2 requested sealing order. Again, competent evidence supporting the application to 3 file documents under seal must be provided by declaration. 4 Any document that is not confidential, privileged, or otherwise protectable 5 in its entirety will not be filed under seal if the confidential portions can be 6 redacted. If documents can be redacted, then a redacted version for public 7 viewing, omitting only the confidential, privileged, or otherwise protectable 8 portions of the document, shall be filed. Any application that seeks to file 9 documents under seal in their entirety should include an explanation of why 10 redaction is not feasible. 11 4. DEFINITIONS 12 4.1 Action: This pending federal lawsuit, Meyers v. The Whiting‐Turner 13 Contracting Company, Case Number 8:23‐cv‐00636‐FWS‐JDE. 14 4.2 Challenging Party: A Party or Non‐Party that challenges the 15 designation of information or items under this Order. 16 4.3 “CONFIDENTIAL” Information or Items: Information 17 (regardless of how it is generated, stored, or maintained) or tangible things 18 that qualify for protection under Federal Rule of Civil Procedure 26(c) and as 19 specified above in the Good Cause Statement. 20 4.4 Counsel: Outside Counsel of Record and House Counsel (as well 21 as their support staff). 22 4.5 Designating Party: A Party or Non‐Party that designates 23 information or items that it produces in disclosures or in responses to 24 discovery as “CONFIDENTIAL.” 25 4.6 Disclosure or Discovery Material: All items or information, 26 regardless of the medium or manner in which it is generated, stored, or 27 maintained (including, among other things, testimony, transcripts, and 1 tangible things), that are produced or generated in disclosures or responses to 2 discovery in this matter. 3 4.7 Expert: A person with specialized knowledge or experience in a 4 matter pertinent to the litigation who has been retained by a Party or its 5 counsel to serve as an expert witness or as a consultant in this action. 6 4.8 House Counsel: Attorneys who are employees of a Party to this 7 Action. House Counsel does not include Outside Counsel of Record or any 8 other outside counsel. 9 4.9 Non‐Party: Any natural person, partnership, corporation, 10 association, or other legal entity not named as a Party to this action. 11 4.10 Outside Counsel of Record: Attorneys who are not employees of 12 a Party to this Action but are retained to represent or advise a Party and have 13 appeared in this Action on behalf of that Party or are affiliated with a law 14 firm that has appeared on behalf of that Party, including support staff. 15 4.11 Party: Any Party to this Action, including all of its officers, 16 directors, employees, consultants, retained experts, and Outside Counsel of 17 Record (and their support staffs). 18 4.12 Producing Party: A Party or Non‐Party that produces Disclosure 19 or Discovery Material in this Action. 20 4.13 Professional Vendors: Persons or entities that provide litigation 21 support services (for example, photocopying, videotaping, translating, 22 preparing exhibits or demonstrations, and organizing, storing, or retrieving 23 data in any form or medium) and their employees and subcontractors. 24 4.14 Protected Material: Any Disclosure or Discovery Material that is 25 designated as “CONFIDENTIAL.” 26 4.15 Receiving Party: A Party that receives Disclosure or Discovery 27 Material from a Producing Party. 1 5. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above) but also any information copied or 4 extracted from Protected Material; all copies, excerpts, summaries, or 5 compilations of Protected Material; and any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial will be governed by the orders of 8 the trial judge. This Order does not govern the use of Protected Material at 9 trial. 10 6. DURATION 11 Once a case proceeds to trial, information that was designated as 12 CONFIDENTIAL or maintained pursuant to this protective order used or 13 introduced as an exhibit at trial becomes public and will be presumptively 14 available to all members of the public, including the press, unless compelling 15 reasons supported by specific factual findings to proceed otherwise are made to 16 the trial judge in advance of the trial. See, Kamakana, 447 F.3d at 1180-81 17 (distinguishing “good cause” showing for sealing documents produced in 18 discovery from “compelling reasons” standard when merits-related documents 19 are part of court record). Accordingly, the terms of this protective order do not 20 extend beyond the commencement of the trial. 21 7. DESIGNATING PROTECTED MATERIAL 22 7.1 Exercise of Restraint and Care in Designating Material for 23 Protection. Each Party or Non‐Party that designates information or items for 24 protection under this Order must take care to limit any such designation to 25 specific material that qualifies under the appropriate standards. The 26 Designating Party must designate for protection only those parts of material, 27 documents, items, or oral or written communications that qualify so that 1 other portions of the material, documents, items, or communications for 2 which protection is not warranted are not swept unjustifiably within the 3 ambit of this Order. 4 Mass, indiscriminate, or routinized designations are prohibited. 5 Designations that are shown to be clearly unjustified or that have been made 6 for an improper purpose (for example, to unnecessarily encumber the case‐ 7 development process or to impose unnecessary expenses and burdens on 8 other parties) may expose the Designating Party to sanctions. 9 If it comes to a Designating Party’s attention that information or items it 10 designated for protection do not qualify for that level of protection, that 11 Designating Party must promptly notify all other Parties that it is 12 withdrawing the inapplicable designation. 13 7.2 Manner and Timing of Designations. Except as otherwise 14 provided in this Order, Disclosure of Discovery Material that qualifies for 15 protection under this Order must be clearly so designated before the material 16 is disclosed or produced. 17 Designation in conformity with this Order requires the following: 18 (a) for information in documentary form (for example, paper or 19 electronic documents but excluding transcripts of depositions or other 20 pretrial or trial proceedings), the Producing Party must affix at a minimum 21 the legend “CONFIDENTIAL” to each page that contains Protected Material. 22 If only a portion or portions of the material on a page qualify for protection, 23 the Producing Party must clearly identify the protected portion(s) (for 24 example, by making appropriate markings in the margins). 25 A Party or Non‐Party that makes original documents available for 26 inspection need not designate them for protection until after the inspecting 27 Party has indicated which documents it would like copied and produced. 1 During the inspection and before the designation, all material made available 2 for inspection must be treated as “CONFIDENTIAL.” After the inspecting 3 Party has identified the documents it wants copied and produced, the 4 Producing Party must determine which documents, or portions thereof, 5 qualify for protection under this Order. Then, before producing the specified 6 documents, the Producing Party must affix the “CONFIDENTIAL” legend to 7 each page that contains Protected Material. If only a portion or portions of 8 the material on a page qualify for protection, the Producing Party also must 9 clearly identify the protected portion(s) (for example, by making appropriate 10 markings in the margins). 11 (b) for testimony given in depositions, the Designating Party must 12 identify the Disclosure or Discovery Material that is protected on the record, 13 before the close of the deposition. 14 (c) for information produced in some form other than documentary 15 and for any other tangible items, the Producing Party must affix in a 16 prominent place on the exterior of the container or containers in which the 17 information is stored the legend “CONFIDENTIAL.” If only a portion or 18 portions of the information warrant protection, the Producing Party, to the 19 extent practicable, must identify the protected portion(s). 20 7.3 Inadvertent Failures to Designate. If timely corrected, an 21 inadvertent failure to designate qualified information or items does not, 22 standing alone, waive the Designating Party’s right to secure protection 23 under this Order for that material. On timely correction of a designation, the 24 Receiving Party must make reasonable efforts to assure that the material is 25 treated in accordance with the provisions of this Order. 26 / / / 27 / / / 1 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 8.1 Timing of Challenges. Any Party or Non‐Party may challenge a 3 designation of confidentiality at any time consistent with the Court’s 4 scheduling order. 5 8.2 Meet and Confer. The Challenging Party shall initiate the dispute 6 resolution process under Local Rule 37‐1 et seq. 7 8.3 Joint Stipulation. Any challenge submitted to the Court shall be 8 via a joint stipulation pursuant to Local Rule 37‐2. 9 8.4 The burden of persuasion in any such proceeding is on the 10 Designating Party. Frivolous challenges, and those made for an improper 11 purpose (for example, to harass or impose unnecessary expenses and burdens 12 on other parties), may expose the Challenging Party to sanctions. Unless the 13 Designating Party has waived or withdrawn the confidentiality designation, 14 all parties must continue to afford the material in question the level of 15 protection to which it is entitled under the Producing Party’s designation 16 until the Court rules on the challenge. 17 9. ACCESS TO AND USE OF PROTECTED MATERIAL 18 9.1 Basic Principles. A Receiving Party may use Protected Material 19 that is disclosed or produced by another Party or by a Non‐Party in 20 connection with this Action only for prosecuting, defending, or attempting to 21 settle this Action. Such Protected Material may be disclosed only to the 22 categories of people and under the conditions described in this Order. When 23 the Action has been terminated, a Receiving Party must comply with the 24 provisions of Section 13 below (FINAL DISPOSITION). 25 Protected Material must be stored and maintained by a Receiving Party 26 at a location and in a manner sufficiently secure to ensure that access is 27 limited to the people authorized under this Order. 1 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the Court or permitted in writing by the Designating 3 Party, a Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to the following people: 5 (a) the Receiving Party’s Outside Counsel of Record in this 6 Action, as well as employees of that Outside Counsel of Record to whom it is 7 reasonably necessary to disclose the information for this Action; 8 (b) the officers, directors, and employees (including House 9 Counsel) of the Receiving Party to whom disclosure is reasonably necessary 10 for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to 12 whom disclosure is reasonably necessary for this Action and who have 13 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the Court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and 17 Professional Vendors to whom disclosure is reasonably necessary for this 18 Action and who have signed the “Acknowledgment and Agreement to Be 19 Bound” (Exhibit A); 20 (g) the author or recipient of a document containing the 21 information or a custodian or other person who otherwise possessed or knew 22 the information; 23 (h) during their depositions, witnesses and attorneys for 24 witnesses to whom disclosure is reasonably necessary, provided that the 25 deposing party requests that the witness sign the form attached as Exhibit A 26 hereto and the witnesses will not be permitted to keep any confidential 27 information unless they sign the form, unless otherwise agreed by the 1 Designating Party or ordered by the Court. Pages of transcribed deposition 2 testimony or exhibits to depositions that reveal Protected Material may be 3 separately bound by the court reporter and may not be disclosed to anyone 4 except as permitted under this Order; and 5 (i) any mediator or settlement officer, and their supporting 6 personnel, mutually agreed on by any of the Parties engaged in settlement 7 discussions or appointed by the Court. 8 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 9 IN OTHER LITIGATION 10 If a Party is served with a subpoena or a court order issued in other 11 litigation that compels disclosure of any information or items designated in 12 this Action as “CONFIDENTIAL,” that Party must: 13 (a) promptly notify in writing the Designating Party. Such 14 notification must include a copy of the subpoena or court order unless 15 prohibited by law; 16 (b) promptly notify in writing the party who caused the 17 subpoena or order to issue in the other litigation that some or all of the 18 material covered by the subpoena or order is subject to this Protective Order. 19 Such notification must include a copy of this Order; and 20 (c) cooperate with respect to all reasonable procedures sought to 21 be pursued by the Designating Party whose Protected Material may be 22 affected. 23 If the Designating Party timely seeks a protective order, the Party 24 served with the subpoena or court order should not produce any information 25 designated in this action as “CONFIDENTIAL” before a determination on the 26 protective‐order request by the relevant court unless the Party has obtained 27 the Designating Party’s permission. The Designating Party bears the burden 1 and expense of seeking protection of its Confidential Material, and nothing in 2 these provisions should be construed as authorizing or encouraging a 3 Receiving Party in this Action to disobey a lawful directive from another 4 court. 5 11. A NON‐PARTY’S PROTECTED MATERIAL SOUGHT TO BE 6 PRODUCED IN THIS LITIGATION 7 (a) The terms of this Order are applicable to information produced by a 8 Non‐Party in this Action and designated as “CONFIDENTIAL.” Such 9 information is protected by the remedies and relief provided by this Order. 10 Nothing in these provisions should be construed as prohibiting a Non‐Party 11 from seeking additional protections. 12 (b) In the event that a Party is required by a valid discovery request to 13 produce a Non‐Party’s Confidential Information in its possession and the 14 Party is subject to an agreement with the Non‐Party not to produce the Non‐ 15 Party’s Confidential Information, then the Party must 16 (1) promptly notify in writing the Requesting Party and the Non‐ 17 Party that some or all of the information requested is subject to a 18 confidentiality agreement with a Non‐Party; 19 (2) promptly provide the Non‐Party with a copy of this Order, 20 the relevant discovery request(s), and a reasonably specific description of the 21 information requested; and 22 (3) make the information requested available for inspection by 23 the Non‐Party, if requested. 24 (c) If the Non‐Party fails to seek a protective order within 14 days of 25 receiving the notice and accompanying information, the Receiving Party may 26 produce the Non‐Party’s Confidential Information responsive to the 27 discovery request. If the Non‐Party timely seeks a protective order, the 1 Receiving Party must not produce any information in its possession or 2 control that is subject to the confidentiality agreement with the Non‐Party 3 before a ruling on the protective‐order request. Absent a court order to the 4 contrary, the Non‐Party must bear the burden and expense of seeking 5 protection of its Protected Material. 6 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a Receiving Party learns that by inadvertence or otherwise, it has 8 disclosed Protected Material to any person or in any circumstance not 9 authorized under this Order, the Receiving Party must immediately notify 10 the Designating Party in writing of the unauthorized disclosures, use its best 11 efforts to retrieve all unauthorized copies of the Protected Material, inform 12 the person or people to whom unauthorized disclosures were made of the 13 terms of this Order, and ask that person or people to execute the 14 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 15 Exhibit A. 16 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 17 PROTECTED MATERIAL 18 When a Producing Party gives notice to Receiving Parties that certain 19 inadvertently produced material is subject to a claim of privilege or other 20 protection, the obligations of the Receiving Parties are those set forth in 21 Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 22 modify whatever procedure may be established in an e‐discovery order that 23 provides for the production without prior privilege review. Pursuant to 24 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an 25 agreement on the effect of disclosure of a communication or information covered 26 by the attorney-client privilege or work product protection, the parties may 27 1 incorporate their agreement in the stipulated protective order submitted to the 2 court. 3 14. MISCELLANEOUS 4 14.1 Right to Further Relief. Nothing in this Order abridges the right 5 of any person to seek its modification by the Court. 6 14.2 Right to Assert Other Objections. By stipulating to the entry of 7 this Order, no Party waives any right it otherwise would have to object to 8 disclosing or producing any information or item on any ground not 9 addressed in this Order. Similarly, no Party waives any right to object on any 10 ground to use in evidence of any of the material covered by this Order. 11 14.3 Filing Protected Material. A Party that seeks to file under seal any 12 Protected Material must comply with Civil Local Rule 79‐5. Protected 13 Material may be filed under seal only pursuant to a court order authorizing 14 the sealing of the specific Protected Material at issue. If a Partyʹs request to 15 file Protected Material under seal is denied, then the Receiving Party may file 16 the information in the public record unless otherwise instructed by the Court. 17 15. FINAL DISPOSITION 18 After the final disposition of this Action, as defined in paragraph 6, 19 within 60 days of a written request by the Designating Party, each Receiving 20 Party must return all Protected Material to the Producing Party or destroy 21 such material. As used in this subdivision, “all Protected Material” includes 22 all copies, abstracts, compilations, summaries, and any other format 23 reproducing or capturing any of the Protected Material. Whether the 24 Protected Material is returned or destroyed, the Receiving Party must submit 25 a written certification to the Producing Party (and, if not the same person or 26 entity, to the Designating Party) by the 60‐day deadline that (1) identifies (by 27 category, when appropriate) all the Protected Material that was returned or 1 | destroyed and (2) affirms that the Receiving Party has not retained any 2 || copies, abstracts, compilations, summaries, or any other format reproducing 3 | or capturing any of the Protected Material. Notwithstanding this provision, 4 | Counsel are entitled to retain an archival copy of all pleadings; motion 5 || papers; trial, deposition, and hearing transcripts; legal memoranda; 6 || correspondence; deposition and trial exhibits; expert reports; attorney work 7 || product; and consultant and expert work product even if such materials 8 || contain Protected Material. Any such archival copies that contain or 9 | constitute Protected Material remain subject to this Order as set forth in 10 | Section 6 (DURATION). 1116. VIOLATION 12 Any violation of this Order may be punished by appropriate measures 13 | including, without limitation, contempt proceedings and/or monetary 14 || sanctions. 15 16 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 17 | DATED: May 31, 2023 hig. anc 19 J D. EARLY ited States Magistrate ftidge 20 21 22 23 24 25 26 27 28 -15-

STIPULATED PROTECTIVE ORDER

1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety 6 and understand the Stipulated Protective Order that was issued by the U.S. 7 District Court for the Central District of California on May 31, 2023, in the 8 case of Meyers v. The Whiting‐Turner Contracting Company, Case No. 8:23‐cv‐ 9 00636‐FWS‐JDE. I agree to comply with and to be bound by all terms of this 10 Stipulated Protective Order, and I understand and acknowledge that failure 11 to so comply could expose me to sanctions and punishment, including 12 contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any 14 person or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the U.S. District Court for 16 the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ 19 [full name] of _______________________________________ [full address and 20 telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 24 Date: ______________________________________ 25 City and State where signed: _________________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________