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Alan Hernandez, Individually and On Behalf of All Others v. Allied Interstate

March 6, 2013

ALAN HERNANDEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILAR SITUATED, PLAINTIFF,
v.
ALLIED INTERSTATE, INC.; ALLIED INTERSTATE LLC; AND DOES 2 THROUGH 50 INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Hon. John E. Mcdermott United States Magistrate Judge

The parties agree that disclosure and discovery activity in the above-captioned litigation may require the disclosure of documents, things, and information (collectively, "Information") in the possession, custody, or control of Plaintiff Alan Hernandez, Defendant Allied Interstate LLC f/k/a Allied Interstate, Inc., other parties who may be added to this case at a later date, and non-parties, which may be protected under constitutional, statutory, or common law rights to privacy, or constitute or contain trade secrets. As a result, the parties believe good cause exists to enter into a protective order to protect such Information. Without waiver of objections to the discoverability of any documents, the parties intend to provide a mechanism for the discovery of relevant Information, otherwise not objectionable, in a manner which protects all parties, including non-parties to this litigation, from the risk of disclosure of such confidential Information. Nothing in this Order is intended, or shall be construed, to expand or restrict the scope of discoverable materials, or affect the scope of materials that may be designated as confidential and subject to any protective order, and shall not otherwise affect any person's burden or duty to comply with the Federal Rules of Civil Procedure, including but not limited to Fed. R. Civ. P. 26.

NOW, WHEREFORE, good cause having been shown, the parties in the above-captioned litigation hereby STIPULATE AND AGREE, and the Court HEREBY ORDERS AS FOLLOWS:

1. Nothing herein shall be deemed: (1) a waiver of any objection any party or non-party may raise to the production of any documents and in support of a refusal to produce such documents, or (2) an admission to the relevancy of the documents requested or produced.

2. This Protective Order governs the handling of Information, including, but not limited to: documents, deposition testimony and exhibits, interrogatory responses, responses to requests for admissions, responses to demands for inspection, and any copies, excerpts, summaries or descriptions of such documents and information.

3. Any party or other person producing any Information in response to a discovery request or subpoena in this action (a "Producing Person") may unilaterally and in good faith designate such Information as "Confidential" in accordance with Paragraphs 4 and 5 below. Any non-party that wishes to take advantage of this protective order shall sign Exhibit A.

4. Information may be designated as "Confidential" if the following two criteria are met: (a) the information contained or expressed therein has not been disclosed to the public, and (b) if public disclosure of such information is either restricted by law or would, in the good faith opinion of the Producing Person, adversely affect its business, commercial, financial, or personal interests, or be reasonably likely to pose a risk of significant harm to the Producing Person's competitive or financial position. Such information includes, but is not limited to, audio recordings containing personal information, account records of consumers, and proprietary database information and internal policies and procedures. Furthermore, information may be designated as "Confidential" if the information in the good-faith opinion of the Producing Person contains (a) trade secrets or other commercially sensitive, confidential research, development or commercial information, or highly sensitive or personal financial information, and (b) the confidential designation is consistent with the standards set forth in the Federal Rules and relevant case law or if the party has a business, commercial, financial, or personal interest in protecting the information.

5. Information may be designated as Confidential by stamping such designation on the Information or electronic media containing the Information. Any Confidential Information not reduced to documentary, tangible or physical form or which cannot conveniently be designated, including but not limited to data contained in any electronic form, shall be designated Confidential by informing the receiving party in writing that the information is confidential. If any party produces Confidential material stored electronically, including but not limited to production of magnetic diskettes or downloaded or uploaded files transferred by any method, then all of that information retains its Confidential nature regardless of whether the information is manipulated or converted to any other media including but not limited to the creation of print-outs or other hard copies and conversions or manipulation of data for whatever purpose including but not limited to conversions or manipulation for processing by any other computer hardware or software. The party must make a good faith effort to label such media as confidential, but must not alter the document's native integrity in doing so.

6. Neither the designation by a party of any document, information or deposition testimony as Confidential hereunder, nor its receipt by the other party, shall constitute a concession that the document, information or deposition testimony is confidential. But the receiving party will treat all Information designated "Confidential" as designated and in the manner described below unless and until the parties agree otherwise or the Court orders otherwise.

7. A party objecting to the designation of Information as "Confidential" (the "Objecting Party") shall provide written notice of the objection to the Producing Party, specifying the materials that are the subject of the objection and detailed grounds for the objection. Within ten (10) days after such objection, the parties shall confer in good faith in an effort to resolve the objection pursuant to Local Rule 37-1. If the parties cannot resolve the objection informally, within the earlier of 21 days of the written notice of objection or within 14 days of the parties agreeing that the meet-and-confer process will not resolve their dispute, the Producing Party shall provide its portion of the joint stipulation required under Local Rule 37-2 to the Objecting Party. The parties shall prepare and file the joint stipulation pursuant to the procedure set forth in Local Rule 37-2. Failure by the Producing Party to timely provide its portion of the joint stipulation to the Objecting Party shall automatically waive the confidentiality designation for each challenged designation. The burden of persuasion in any such challenge proceeding shall be on the Producing Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Objecting Party to sanctions. Unless the Producing Party has waived the confidentiality designation by failing to provide its portion of the joint stipulation as described above, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the court rules on the challenge.

8. Except as provided herein, or upon order of the Court, without prior express written permission from the Producing Party, counsel shall not deliver, exhibit, or disclose any Information designated as "Confidential" to any person(s), organization(s), or group(s), except those permitted by Paragraphs 10 through 14 below, and shall not discuss any such Information with any person(s), organization(s), or group(s), except those permitted by Paragraphs 9 through 13 below.

9. Information designated as "Confidential" may be used solely by the parties to this litigation and only in preparation for and during the trial of this action, all post-trial proceedings, or mediation or arbitration of the issues raised in this litigation. Nothing in this Order shall be construed as authorizing a party to disobey a lawful subpoena issued in another action, although upon receiving such a subpoena, the receiving party must notify the disclosing party within two business days to give the disclosing party an opportunity to object. The parties stipulate that Confidential Information obtained through discovery in this action will be held in strict confidence and shall not be disclosed, except as otherwise provided herein, to any person other than:

a) the Court (including appellate courts), arbitrators, and mediators, and the personnel of any of the foregoing;

b) counsel to all parties in this litigation, including "outside" counsel of any party's members, and the counsel's regular and ...


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