Paul Atherton et al v Toshiba America Information Systems Inc et al

Filing 71

ORDER ON STIPULATION FOR PROTECTIVE ORDER regarding confidentiality and inadvertent disclosure by Magistrate Judge Marc L. Goldman. (See document for details) (Note: Changes have been made to this document) (db)

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GREENBERG TRAURIG, LLP JEFF E. SCOTT (SBN 126308) E-Mail: [e-mail] E-Mail: [e-mail] 2450 Colorado Avenue, Suite 400E Santa Monica, CA 90404-5524 Telephone: [phone] Facsimile: 310-586-7800 GREENBERG TRAURIG, LLP PHILIP R. SELLINGER (SBN 226468) E-Mail: [e-mail] 200 Park Avenue Florham Park, NJ 07932 Telephone: [phone] Facsimile: 973-301-8410 Attorneys for Defendant Toshiba America Information Systems, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION PAUL ATHERTON, JOE O'BRIEN, MIKE WILLIAMS, GORDON PETRASH, and GERHARD GUEVARRA, DAVID O'SHAUGHNESSY, individually and on behalf of all others similarly situated, Plaintiffs, vs. TOSHIBA AMERICA INFORMATION SYSTEMS, INC. and DOES 1-20, Defendants. CASE NO. CV 08-02141 AG (MLGx) ORDER ON STIPULATION FOR PROTECTIVE ORDER REGARDING CONFIDENTIALITY AND INADVERTENT DISCLOSURE NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

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WHEREAS, the parties anticipate that, through discovery, they may seek to obtain

2 documents and information that may be of a confidential or proprietary nature within the 3 meaning of Rule 26(c)(7) of the Federal Rules of Civil Procedure; 4 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. b. IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned 1. Definitions. The following words and phrases have the following meanings a. "Producer" means a party or non-party who or which produces the 5 counsel for the parties, as follows. 7 for the purposes of this Confidentiality Order. following documents or material (collectively, "Documents," or individually, a "Document") in connection with this action. i. Documents or physical evidence produced in response to document requests, interrogatories, requests for admissions, notices of inspection, or subpoenas; ii. iii. Responses to document requests, interrogatories and requests Deposition transcripts, including exhibits thereto. for admission; or "Confidential Material" means Documents containing sensitive

business or proprietary information, within the meaning of Rule 26(c)(7) of the Federal Rules of Civil Procedure. If a party learns at any time that a Document containing his or its sensitive or proprietary information exists in the other party's files and has not previously been designated as Confidential Material, the party shall be entitled to do so pursuant to paragraph 13 below. c. "Designator" means a party to this action which or who designates documents as Confidential Material. Limitation on Use of Confidential Material. All Confidential Material

26 produced in this litigation shall be used by the parties and their respective counsel solely 27 for the purpose of this litigation and for no other purpose, including without limitation, 28 any future actions to be brought by any plaintiff or non-party, and shall not at any time be
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1 shared with non-parties to this action, including without limitation, counsel who are not 2 counsel of record for the parties to this action. Moreover, all Confidential Material shall 3 be returned or destroyed at the conclusion of the litigation, notwithstanding the existence 4 of any pending or prospective dispute as to the confidentiality of the underlying 5 information contained in the Confidential Material, pursuant to paragraph 11 below. 6 Plaintiffs reserve the right to seek relief from the limitations imposed by this paragraph 7 through a motion or application to the Court in this action. 8 3. Designation of Confidential Material ­ Documents. If a party wishes to 9 obtain the confidential protection set forth in paragraph 2, he or it shall place the legend 10 "CONFIDENTIAL" (the "Confidential Legend") on the face of the Document and on 11 each page so designated or by otherwise designating a category or group of Documents in 12 clear and unambiguous language to this effect in a letter to the other party or in a similar 13 writing. Any Document stamped, designated or otherwise marked in such a manner will 14 be subject to the terms of this Confidentiality Order. 15 4. Designation of Confidential Material ­ Discovery Responses. 16 Designation of responses to interrogatories, requests for admissions or similar written 17 discovery requests, and the information contained therein, as Confidential Material shall 18 be made by placing the Confidential Legend on each page of any response containing 19 information so designated before service of the response on the other party. 20 5. Designation of Confidential Material ­ Deposition Testimony and 21 Exhibits. A party may designate deposition testimony, including exhibits, as 22 Confidential Material if the deponent testifies about Confidential Material of that party, 23 pursuant to the following terms and conditions. 24 25 26 27 28 a. Designation of deposition testimony, including exhibits, as Confidential Material shall be made by service of a letter to this effect on the other party (a "Designation Letter"). The Designation Letter shall be served within 30 days of the designee's receipt of the transcript, and shall specify the testimony that is deemed to be confidential by page and line designation, or the exhibit that is to
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be deemed confidential by the name and number assigned to such exhibit by the party taking the deposition. b. At the time of receipt of a Designation Letter, both parties shall place the Confidential Legend at the top of each page of each deposition transcript and exhibit designated as Confidential Material, as well as each photocopy thereof. 6. Procedure for Raising Disputes as to Confidentiality. A party who or

7 which disagrees with the designation of any materials as Confidential (the "Objecting 8 Party") shall notify the Designator in writing of its objection. If the Designator does not 9 withdraw the designation of Confidentiality, the Objecting Party shall move for relief 10 from the Court within 30 days after receipt of written notice from the Designator 11 confirming the Confidential designation of the material. The Designating Party shall 12 bear the burden of proof to support its designation of confidentiality in opposing any such 13 motion. 14 7. Permissible Disclosure of Confidential Material. Confidential Material 15 subject to this Confidentiality Order shall be used solely for the purpose of conducting 16 this action and any appeals thereof in this Court, or for purposes otherwise identified 17 herein. All Confidential Material subject to this Confidentiality Order shall be kept in a 18 confidential manner and may be disclosed only to the extent necessary for the purpose of 19 conducting this litigation, and only to and among the following persons. 20 21 22 23 24 25 26 27 28 a. The parties, and the attorneys for any party in this action, including without limitation, their respective partners, of counsel, associates, paralegals, and other employees; b. Any current director, officer, employee (including in-house counsel), or agent of a party who is assigned by such party to work on this action, including anyone responsible for the supervision of this action; c. Any person not employed by a party or retained by a party or his or its counsel from whom testimony is taken or may be taken in this action, except that such person may see and retain copies of Confidential Material only during his or
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her testimony, in preparation therefor, or in discussions of possible testimony, and may not thereafter retain copies of any Confidential Material; d. Any person not employed by a party who is expressly retained by the party or his or its counsel to assist in preparation of this action, including expert witnesses and consultants, and their respective employees and support staff; e. process; f. g. Court reporters; and Commercial document services employed for copying, imaging, The Court and all other Court personnel involved in the adjudicative

scanning, document handling, document storage, or related litigation support functions in connection with this case. 8. Limitation on Disclosure of Confidential Matter. No party shall use any

13 Confidential Material produced by another party for any purposes not set forth in this 14 Confidentiality Order without the express prior written consent of the Designator of the 15 Confidential Material or an order of this Court after notice to the Designator. 16 9. Use of Consent Agreement. Before disclosing Confidential Material to a 17 person identified in subparagraphs 7(c) or 7(d) above, such person shall be required to 18 sign a written certification ("Consent Agreement") that he is familiar with the terms and 19 conditions of this Confidentiality Order and consents to be bound thereby. A form of 20 such Consent Agreement is attached as Exhibit A. A copy of each Consent Agreement 21 so obtained shall be retained by the party that discloses Confidential Material and shall be 22 produced upon good cause shown by the Designator. 23 10. Protective Order Motions. Nothing herein shall be construed so as to limit 24 the right of a party to seek a protective order pursuant to Rule 26(c) of the Federal Rules 25 of Civil Procedure to prevent the disclosure of any Document or category of Documents. 26 11. Return or Destruction of Confidential Material. Within 180 days after 27 conclusion of this action, whether by voluntary or involuntary dismissal, final judgment, 28 exhaustion of the appellate process, or settlement, counsel of record employed by a party
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1 to this action shall, upon written request of the Producer, return to the Producer 2 Documents produced in this action, including without limitation, all Confidential 3 Material within the scope of this Confidentiality Order, or destroy all such Confidential 4 Material and provide the Producer with an affidavit or other sworn statement to that 5 effect. 6 12. Use of Confidential Material in Filings with Court. The parties may offer 7 any Confidential Material in connection with motions or briefs, at hearings, or at trial in 8 this action. Pursuant to Local Rule 79-5.1, any Confidential Material submitted to, 9 presented to or filed with the Court before trial shall be filed under seal by the party 10 making the submission and shall not be made available to persons other than as 11 authorized by this Confidentiality Order and Local Rule 79-5.2. Confidential Material 12 shall not lose its confidential status because it is used in any Court proceeding in this 13 action. 14 13. Inadvertent Production of Confidential Material. If a Producer 15 inadvertently produces Confidential Material without designating it as such pursuant to 16 paragraph 3 above, or if a party learns that the other party possesses documents that 17 contain his or its sensitive or proprietary information, the party may still designate such 18 material as Confidential Material as follows: 19 20 21 22 23 24 25 26 27 28 a. Within 30 days of the discovery of its failure to designate, the Producer/Designator must give written notice to the party who received copies of the produced Documents that the Producer/Designator claims, in whole or in part, to be Confidential Material. b. Upon receipt of such notice, the party who has received copies of the produced Documents shall promptly place the Confidential Legend on the Documents designated as Confidential Material and shall so represent in writing to the Producer/Designator. c. The Producer/Designator shall bear the cost of placing the Confidential Legend on all such inadvertently produced Documents.
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14.

Producer's Right to Publication. This Confidentiality Order shall not

2 restrict the right of any person to publish, disseminate or otherwise release any Document 3 that he or she produced or designated, subject to any party's right to challenge the 4 designation of any such Document as Confidential on any basis, pursuant to the 5 procedure set forth in paragraph 6 above. Any party asserting any such challenge shall 6 continue to treat any such Document as Confidential Material until further order of the 7 Court. 8 15. No Subject Matter Waiver of Confidentiality by Failure to Designate. A 9 party's failure to designate a Document as Confidential Material hereunder shall not 10 constitute a waiver of such party's assertion of confidentiality with respect to any other 11 Document or category of Documents. 12 16. No Subject Matter Waiver of Privilege. If a party inadvertently produces 13 Documents which are or may be protected from disclosure by the attorney-client 14 privilege, the work product doctrine or any other applicable evidentiary or common law 15 privilege, any subsequent finding of waiver respecting the disclosure of such Documents 16 shall be deemed a limited waiver as to such Documents only, and for purposes of this 17 litigation only. The production of any such Documents shall not constitute any waiver of 18 privilege respecting any other Documents or for any other purpose. 19 17. Inadvertent Production of Privileged Material. If a party produces 20 Documents which it considers to be privileged, in whole or in part, he or it may seek to 21 retrieve such Documents or parts thereof as follows: 22 23 24 25 26 27 28
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a.

Within 30 days of the Producer's discovery of such a disclosure, the

Producer shall give written notice claiming privilege to the other party. Immediately upon receipt of such notice, the Documents shall be treated as privileged by each recipient thereof and all reasonable steps shall be undertaken by such receiving persons to safeguard such Documents, including, where applicable, the immediate retrieval of such Documents from all non-parties to whom or which

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they have been disclosed, until such time as the assertion of privilege is resolved in accordance with the terms of this Confidentiality Order. b. Unless within 20 days of the provision of the notice in subparagraph (a) above, the disclosed Documents and all copies thereof are returned to the Producer, or an affidavit or other sworn statement is furnished to the Producer attesting to the fact that the privileged Documents and all copies thereof have been destroyed, then the Producer may move for an appropriate protective order. The other party may oppose such a motion on any ground not contrary to the express terms of this Confidentiality Order. The failure of the Producer to provide notice pursuant to subparagraph (a) above, or to move for a protective order pursuant to this subparagraph, shall constitute a limited waiver of any claim of privilege solely with respect to the particular Documents themselves. c. If a separate protective order is entered by the Court, and no timely appeal is taken from such order (or an appeal is taken but proves unsuccessful and no further right of appeal is available), then within 30 days of the exhaustion of any right to appeal such order, each recipient of the privileged Documents shall either return the privileged Documents and all copies thereof to the Producer, or furnish an affidavit or other sworn statement attesting to the fact that the privileged Documents and all copies thereof have been destroyed. In the case of deposition transcripts, an affidavit or other sworn statement stating that the privileged portions of the testimony have been redacted will suffice. 18. Parties' Agreement to Designate Material as Confidential.

23 Notwithstanding any other provision of this Confidentiality Order, the parties in this 24 action may, by written agreement at any time, designate any Document as Confidential 25 Material subject to the protections herein. 26 19. Survival and Continuing Jurisdiction. This Confidentiality Order and 27 each of its respective terms and conditions shall survive the termination of this action, 28 whether by voluntary or involuntary dismissal, final judgment, exhaustion of the
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1 appellate process, or settlement, and shall continue in full force and effect thereafter. The 2 Court will retain jurisdiction after the termination of this action to enforce the terms of 3 this Confidentiality Order. Any party may, upon written notice to the adverse parties, 4 move for an order modifying, amending or dissolving the terms of this Confidentiality 5 Order. 6 20. Notice of Breach and Opportunity to Cure. Notwithstanding any contrary 7 provision herein, a party claiming breach of this Confidentiality Order shall have the 8 burden to serve written notice of such breach on counsel of record for the other party. 9 Such notice shall specifically identify the Confidential Material with respect to which a 10 breach of this Confidentiality Order is alleged to have occurred, and shall provide said 11 party a reasonable period of not less than 30 days following the date of service of such 12 notice in which to cure the breach. A party claiming breach of this Confidentiality Order 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
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1 may seek from the Court, after affording such notice and opportunity for cure, a 2 temporary restraining order or preliminary injunction, to the extent necessary to prevent 3 him or it from suffering irreparable harm. 4 Dated: January 9, 2009 5 6 7 8 9 Dated: January 9, 2009 10 11 12 13 14 15 16 17 18 DATED: January 9, 2009 19 20 21 22 23 24 25 26 27 28
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GREENBERG TRAURIG, LLP By /S/ JEFF E. SCOTT Jeff E. Scott Attorneys for Defendant Toshiba America Information Systems, Inc. THE STURDEVANT LAW FIRM, APC LAMAR, ARCHER & COFRIN, LLP By: /S/

Robert C. Lamar Attorneys for Plaintiffs Paul Atherton, Joe O'Brien, Mike Williams, Gordon Petrash, Gerhard Guevarra and David O'Shaughnessy

____________________________________ MARC L. GOLDMAN UNITED STATES MAGISTRATE JUDGE

1 GREENBERG TRAURIG, LLP JEFF E. SCOTT (SBN 126308) 2 E-Mail: [e-mail] 3 JORDAN D. GROTZINGER (SBN 190466 ) E-Mail: [e-mail] 4 2450 Colorado Avenue, Suite 400E Santa Monica, CA 90404-5524 5 Telephone: [phone] Facsimile: 310-586-7800 7 GREENBERG TRAURIG, LLP PHILIP R. SELLINGER (SBN 226468) 8 E-Mail: [e-mail] 200 Park Avenue 9 Florham Park, NJ 07932 10 Telephone: [phone] Facsimile: 973-301-8410 11 12 Attorneys for Defendant Toshiba America Information Systems, Inc. 13 UNITED STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION PAUL ATHERTON, JOE O'BRIEN, MIKE WILLIAMS, GORDON PETRASH, and GERHARD GUEVARRA, DAVID O'SHAUGHNESSY, individually and on behalf of all others similarly situated, Plaintiffs, vs. TOSHIBA AMERICA INFORMATION SYSTEMS, INC. and DOES 1-20, Defendants. CASE NO. CV 08-02141 AG (MLGx) STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIALITY AND INADVERTENT DISCLOSURE

Judge: Hon. Andrew J. Guilford Date Filed: March 31, 2008

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I, the undersigned, have read and understand the terms and conditions of the

2 Stipulation and Protective Order Regarding Confidentiality and Inadvertent Disclosure 3 ("Confidentiality Order") in the above-captioned matter, dated ________________, 4 2008, and I consent to be bound by its terms as follows: 5 1. I agree that I will disclose and use "Confidential Material," as defined by the 6 Confidentiality Order, only as permitted pursuant to the express terms and conditions 7 thereof, and that I will protect and maintain the confidentiality of any "Documents," as 8 defined by the Confidentiality Order, so designated. 9 2. I further unconditionally agree to return all Confidential Material to the law 10 firm or person that provided such Confidential Material to me immediately after my use 11 thereof for this litigation ceases. 12 3. I consent to the personal jurisdiction of the United States District Court for the 13 Central District of California to the limited extent necessary to enforce the terms and 14 conditions of the Confidentiality Order. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Signature: Date:

_____________________________ _____________________________

Print Name: _____________________________