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Guisasola v. Crossmark, Inc.

United States District Court, W.D. Washington, Seattle

August 25, 2014

CROSSMARK, INC., Defendant.


MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on two discovery motions. First, Plaintiff moves to compel Defendant Crossmark to produce deposition transcripts. (Dkt. No. 37). (Dkt. No. 38.) Second, Defendant moves for entry of a protective order. (Dkt. No. 39.) The Court reviewed the motions, the responses, the replies, and all related papers. The Court GRANTS Defendant's motion (Dkt. No. 39) and DENIES Plaintiff's motion (Dkt. No. 37.)


This is an action for unpaid wages. Ms. Guisasola alleges her former employer, Crossmark, did not pay her for work performed and/or paid her at improper rates. (Dkt. No. 1 at 4.) She claims these practices violated the Fair Labor Standards Act, 29 U.S.C. ยงยง201.

Ms. Guisasola originally brought her claims as part of a putative class action in the Eastern District of Pennsylvania. (Dkt. No. 42-1 at 2.) In November 2012, the Pennsylvania Court denied plaintiffs' motion for class certification, finding that class members were not similarly situated. Postiglione v. Crossmark, Inc., 2012 WL 5829793, at *7 (E.D.Pa. Nov. 15, 2012). After the dismissal of that case, Ms. Guisasola sued Crossmark in this Court.


A. Ms. Guisasola Motion to Compel

"Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

Plaintiff asks this Court to compel the deposition transcripts of Crossmark employees taken as part of other litigation. (Dkt. No. 37 at 1.) These transcripts are subject to protective orders from other courts. (Dkt. No. 42 at 9.) Nonetheless, Plaintiff asserts these depositions are relevant to her claim "that Crossmark had actual or constructive knowledge that she was not paid for all her time worked." (Dkt. No. 37 at 4.)

The crux of the parties' dispute is relevance. But, the Court does not decide that issue because Plaintiff brought this matter to the wrong court. While deposition transcripts may advance "the interests of judicial economy by avoiding the wasteful duplication of discovery, " under the Ninth Circuit's decision in Foltz v. State Farm Mutual Automobile Insurance Co., it is "the court that issued the [protective] order [that] is in the best position to make the relevance assessment for it presumably is the only court familiar with the protected discovery." 331 F.3d 1122, 1132 (9th Cir. 2003). Given that these documents are subject to other courts' protective orders, the Court DENIES the motion until the issuing courts modify those protective orders. Id. at 1133 ("once the district court has modified its protective order.... the disputes over the ultimate discoverability of specific materials covered by the protective order must be resolved by the collateral courts.")[1] The motion is DENIED without prejudice. Plaintiff may bring a renewed motion should the issuing courts modify the protective orders.

B. Defendant's Motion for a Protective Order

In a related motion, Crossmark moves for a protective order to preclude Plaintiff's counsel from disclosing confidential discovery produced in this case to litigants in other cases. (Dkt. No. 37 at 5.) Crossmark agreed to allow Plaintiffs in all of the cases before this Court to share discovery. (Dkt. No. 37-1 at 3.) In contrast, Plaintiff wants to add language to this District's model protective order that would allow it to share Crossmark's confidential documents with any other Postiglione plaintiff. (Dkt. No. 38 at 5.) Plaintiff's proposition is unworkable: this Court would be tasked with policing discovery far beyond this case and its jurisdiction. The Ninth Circuit's decision in Foltz establishes the procedure for collateral litigants to seek access to confidential discovery. Ms. Guisasola must follow that protocol.

The Court GRANTS the motion and ADOPTS the district's model protective order, with the other modifications agreed to by the parties. The Order is as follows:


Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal.

1.1 For purposes of this Stipulated Protective Order, the terms "this action, " "this lawsuit, " "this litigation, " and "this case" shall refer collectively to the cases currently pending before this Court as Tamela Guisasola v. CROSSMARK, Inc., No. C13-1337, Stephen Nick and Patricia Kaiser v. CROSSMARK, Inc., No. C13-1335, Bruce Nielsen v. CROSSMARK, Inc., No. C13-1334, and Sally Wardell v. CROSSMARK, Inc., No. C13-1331, as well as any other action involving any of the Plaintiffs Guisasola, Kaiser, Nick, Nielsen, and Wardell that may arise as a result of any order by the Court to sever and/or consolidate any or all of the aforementioned cases (hereinafter, "the Washington Cases"). The parties agree that confidential materials and information produced in any one of the Washington Cases may be disclosed to persons in any of the other Washington Cases who are qualified to receive such confidential materials or information as defined in Section 4.2 below, subject to all other provisions of this Stipulated Protective Order. Such agreement is made only for the sake of streamlining the discovery process, and does not represent any concession by CROSSMARK that any of the Washington Cases are "related" or should be consolidated.


"Confidential" material that CROSSMARK believes is confidential and should be protected shall include the following documents and tangible things produced or otherwise exchanged: employment records and/or private personal information of the Plaintiff and other current or former employees, such as evaluations, disciplinary actions, payroll records, personal identifying information, financial information, and confidential information about employee compensation; commercially sensitive and/or trade secret information relating to CROSSMARK's business plans, marketing strategies, and budgeting methods, as well as its proprietary methods of assigning, organizing, managing, and reporting employee work assignments; confidential information relating to CROSSMARK's business arrangements with third party customers; trade secret information relating to the technical characteristics of the proprietary software used by CROSSMARK for employee time reporting and work management; sensitive technical information relating to the security protocols and backup procedures of CROSSMARK's computer systems; and such other documents or information the disclosure of which CROSSMARK reasonably and in good faith believes could place CROSSMARK at a competitive disadvantage, breach duties of confidentiality CROSSMARK owes to non-parties, and/or intrude on the privacy rights of non-parties.

Plaintiffs take no position on the appropriateness of any particular designation at this time, and does not agree that the above-described documents are necessarily warranting of the Court's protection. Nonetheless, to facilitate discovery and in the spirit ...

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