IN RE TOYOTA MOTOR CORPORATION SECURITIES LITIGATION

Filing 227

ORDER RE: JOINT STIPULATION FOR PROTECTIVE ORDER RE CONFIDENTIAL AND HIGHLYCONFIDENTIAL INFORMATION by Magistrate Judge Andrew J. Wistrich, re: Stipulation for Protective Order, 225 . (mz)

1
2
3
4
5
6
7
8
9
10
11
12
13
14

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

15
16
17

In re Toyota Motor Corporation
Securities Litigation

Master File No. CV-10-0922 DSF (AJWx)

19

ORDER RE: JOINT STIPULATION
FOR PROTECTIVE ORDER RE
CONFIDENTIAL AND HIGHLY
CONFIDENTIAL INFORMATION

20

DISCOVERY MATTER

21

Hon. Andrew J. Wistrich

18

22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

1

WHEREAS, to facilitate the production and receipt of information during

2

discovery in the above-captioned litigation (“the Litigation”), the parties agree

3

and stipulate, through their respective counsel, to the entry of the following

4

Protective Order for the protection of Confidential and Highly Confidential Materials

5

(as defined herein) that may be produced or otherwise disclosed during the

6

course of this Litigation by any party or non-party. The Court has been fully advised

7

in the premises and has found good cause for its entry.

8

Accordingly, IT IS HEREBY ORDERED that the terms and conditions

9

of this Protective Order shall govern the handling of discovery materials in the

10
11

Litigation:
1.

Applicability of Order: This Order does not and will not govern any

12

trial proceedings in this Litigation, but will otherwise be applicable to and govern

13

the handling of documents, depositions, deposition transcripts, deposition exhibits,

14

interrogatory responses, responses to requests for admissions, responses to

15

requests for production of documents, and all other discovery obtained pursuant to

16

the Federal Rules of Civil Procedure by or from a party in connection with the

17

Litigation (this information hereinafter referred to as “Discovery Material”). As used

18

herein, “Producing Party” or “Disclosing Party” shall refer to the parties to this

19

Litigation that give testimony or produce documents or other information, and

20

“Receiving Party” shall refer to the parties to this Litigation that receive such

21

information.

22

2.

Designation of Material: Any Producing Party may designate

23

Discovery Material that is in their possession, custody or control to be produced to a

24

Receiving Party as “Confidential” or “Highly Confidential” under the terms of this

25

Order if the Producing Party in good faith reasonably believes that such Discovery

26

Material contains non-public, confidential material as defined in paragraphs 4 and

27

5 below, (hereinafter “Confidential Material” or “Highly Confidential Material”).

28
Gibson, Dunn &
Crutcher LLP

1

1

3.

Exercise of Restraint and Care in Designating Material for

2

Protection. Each Party or Non-Party that designates information or items for

3

protection under this Order must take care to limit any such designation to specific

4

material that qualifies under the appropriate standards. Mass, indiscriminate, or

5

routinized designations are prohibited.

6

4.

Confidential Material: For purposes of this Order, Confidential

7

Material is any information that a party believes in good faith to be confidential or

8

sensitive information, including, but not limited to, trade secrets, research, design,

9

development, financial, technical, marketing, planning, personal, or commercial

10

information, as such terms are used in Rule 26(c)(1)(G) of the Federal Rules of Civil

11

Procedure and any applicable case law interpreting Rule 26(c)(1)(G) or the former

12

Rule 26(c)(7).

13

5.

Highly Confidential Material: For purposes of this Order, Highly

14

Confidential Material is any Protected Data (defined below) and/or Confidential

15

Material as defined in paragraph 4 which also includes non-public product design

16

and testing information or extremely sensitive, highly confidential, non-public

17

information, consisting either of trade secrets or proprietary or other highly

18

confidential business, financial, regulatory, or strategic information (including, but

19

not limited to, information regarding business plans, technical data, and non-

20

public designs), the disclosure of which would create a substantial risk of

21

competitive or business injury to the Producing Party. Certain Protected Data may

22

compel alternative or additional protections beyond those afforded Highly

23

Confidential Material, in which event the parties shall meet and confer in good

24

faith, and, if unsuccessful, shall move the Court for appropriate relief.

25

Notwithstanding the foregoing, this Order shall not apply to Toyota computer

26

source code and related materials, or other extraordinarily sensitive materials

27

requiring special protection, which if relevant to and sought in this litigation shall

28
Gibson, Dunn &
Crutcher LLP

2

1

be subject to additional forms of protection pursuant to further order of this Court

2

following a meet and confer of the parties.

3

a.

4

including but not limited to personally identifiable information that a party

5

believes in good faith to be subject to federal, state or foreign data protection

6

laws, data privacy laws or other privacy obligations. Protected Data

7

constitutes highly sensitive materials requiring special protection. Examples of

8

such data protection laws include but are not limited to The Gramm-Leach-

9

Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); The Health

Protected Data: Protected Data shall refer to any information,

10

Insurance Portability and Accountability Act, 45 CFR Part 160 and Subparts A

11

and E of Part 164 (medical information); Directive 95/46/EC of the European

12

Parliament and of the Council of 24 October 1995 on the Protection of

13

Individuals with Regard to the Processing of Personal Data and on the Free

14

Movement of Such Data, 1995 O.J. (L281/31) (European Union personal

15

information); Data Protection Act 1998 (c. 29) (United Kingdom personal

16

information); Federal Data Protection Act (Germany personal information); the

17

Belgian Law of December 8, 1992 on Privacy Protection in relation to the

18

Processing of Personal Data (Belgium personal information); Personal

19

Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c.

20

5 (Canada personal information); The Federal Law on Protection of Personal

21

Data held by Private Parties (published July 5, 2010) (Mexico personal

22

information); and The Personal Information Protection Act (Law No. 57 of

23

2003) (Japan personal information).

24

6.

Designating Confidential Material or Highly Confidential

25

Material: The designation of Discovery Material as Confidential Material or

26

Highly Confidential Material for purposes of this Order shall be made in the

27

following manner:

28
Gibson, Dunn &
Crutcher LLP

3

1

a.

2

depositions or other pre-trial testimony), designation shall be made by affixing

3

the legend “Confidential” or “Highly Confidential” to each page containing any

4

Confidential or Highly Confidential Material, respectively.

5

b.

6

trial testimony, designation of the portion of the transcript (including exhibits)

7

which contains Confidential Material or Highly Confidential Material shall be

8

made (subject to paragraph 7, below) (i) by a statement to such effect on the record

9

during the proceeding in which the testimony is received, or (ii) by written notice

10

served on counsel of record in this Litigation within thirty (30) business days after

11

the receipt of the draft transcript of such proceeding. However, before such thirty

12

(30) day period expires, all testimony, exhibits and transcripts of depositions or

13

other testimony shall be treated as Highly Confidential Material. All portions of

14

deposition transcripts not designated Confidential Material or Highly Confidential

15

Material as provided in paragraphs 4 and 5 shall be deemed not confidential.

16

c.

17

Confidential Material (e.g., videotape, audio tape, computer disk, etc.) may be

18

designated as such by labeling the outside of such non-written material designated

19

as “Confidential” or “Highly Confidential.” In the event a Receiving Party

20

generates any “hard copy” transcription or printout from any such designated non-

21

written materials, the person who generates such “hard copy” transcription shall

22

take reasonable steps to maintain the confidentiality of such materials.

23

7.

Documents: In the case of documents or other materials (apart from

Deposition and Other Proceedings: In the case of depositions or other pre-

Non-Written Materials: Any non-written Confidential Material or Highly

Inadvertent Disclosure: The inadvertent failure to designate Discovery

24

Material as Confidential or Highly Confidential does not constitute a waiver of such

25

claim and may be remedied by prompt supplemental written notice upon discovery of

26

the inadvertent disclosure, with the effect that such Discovery Material will be

27

subject to the protections of this Order. The Receiving Party shall exercise good

28

faith efforts to ensure that copies it makes of Discovery Material produced to it, and

Gibson, Dunn &
Crutcher LLP

4

1

copies made by others who obtained such Discovery Material directly or

2

indirectly from the Receiving Party, include the appropriate confidentiality legend, to

3

the same extent that the Discovery Material has been marked with the appropriate

4

confidentiality legend by the Producing Party.

5

8.

Notes of Confidential Material or Highly Confidential Material:

6

Any notes, lists, memoranda, indices, compilations prepared or based on an

7

examination of Confidential Material or Highly Confidential Material, that quote

8

from or paraphrase, Confidential Material or Highly Confidential Material with such

9

specificity that the Confidential Material or Highly Confidential Material can be

10

identified, or by reasonable logical extension can be identified, shall be accorded the

11

same status of confidentiality as the underlying Confidential Material or Highly

12

Confidential Material from which they are made and shall be subject to all of the

13

terms of this Protective Order.

14

9.

Notice To Non-Parties: Any Party issuing a subpoena to a non-

15

party shall enclose a copy of this Protective Order with a request that, within ten

16

(10) business days, the non-party either request the protection of this Protective Order

17

or notify the issuing party that the non-party does not need the protection of this

18

Protective Order or wishes to seek different protection.

19

10. Persons Authorized To Receive Confidential Material:

20

Discovery Material designated “Confidential” may be disclosed, summarized,

21

described, characterized or otherwise communicated or made available in whole or

22

in part only to the following persons:

23

a.

24

handling of the Litigation, and court reporters transcribing the testimony or

25

argument at a hearing, trial or deposition in this Litigation or any appeal there

26

from;

The Court, persons employed by the Court who are necessary for the

27
28
Gibson, Dunn &
Crutcher LLP

5

1

b.

2

administrative and clerical employees working under the direct supervision of

3

such counsel;

4

c.

5

counsel of record in this Litigation, provided such experts and consultants have

6

signed the “Agreement Concerning Information Covered by Protective Order”

7

attached hereto as Exhibit A;

8

d.

9

for purposes of this Litigation and who have signed the “Agreement Concerning

Counsel of record in this Litigation, as well as paralegals, technical,

Subject to paragraph 12 hereof, experts or consultants assisting any

Individual named plaintiffs who have a need to know such information

10

Information Covered by Protective Order” attached hereto as Exhibit A;

11

e.

12

information for purposes of this Litigation and who have signed the “Agreement

13

Concerning Information Covered by Protective Order” attached hereto as

14

Exhibit A;

15

f.

16

this Litigation for purposes of this Litigation, provided such services have

17

signed the “Agreement Concerning Information Covered by Protective Order”

18

attached hereto as Exhibit A. A signature by an authorized representative of the

19

company who confirms that he or she has appropriately advised the relevant

20

employees of the confidentiality obligations in this order and taken reasonable

21

steps to comply thereto shall be sufficient;

22

g.

23

in this Litigation for purposes of this Litigation, provided such vendors have

24

signed the “Agreement Concerning Information Covered by Protective Order”

25

attached hereto as Exhibit A. A signature by an authorized representative of the

26

company who confirms that he or she has appropriately advised the relevant

27

employees of the confidentiality obligations in this order and taken reasonable

28

steps to comply thereto shall be sufficient;

Gibson, Dunn &
Crutcher LLP

Officers, directors or employees of parties who have a need to know such

Graphics, translation, or design services retained by counsel of record in

Commercial copy and e-discovery vendors retained by counsel of record

6

1

h.

2

record to maintain the confidentiality of relevant documents or information

3

shown to them or who have signed the “Agreement Concerning Information

4

Covered by Protective Order” attached hereto as Exhibit A (except that persons

5

described in sub-paragraph (i) below do not need to sign Exhibit A to be shown

6

Confidential Material in their depositions);

7

i.

8

be an author, addressee, or copy recipient of the Confidential Material, or as to

9

whom there has been testimony, whether at deposition or trial, or by declaration

During their depositions, witnesses in the Litigation who agree on the

Any person indicated by a document marked as Confidential Material to

10

or affidavit, that the person was the author or recipient of the Confidential

11

Material; and

12

j.

13

Producing Party who has signed the “Agreement Concerning Information

14

Covered by Protective Order” attached hereto as Exhibit A.

15

11. Persons Authorized To Receive Highly Confidential Material:

16

Except as specifically provided for in this or subsequent Court orders, Highly

17

Confidential Material or its contents shall not be disclosed, summarized, described, or

18

otherwise communicated or made available in whole or in part to any person or entity,

19

directly or indirectly, other than the following:

Any other person, only upon order of the Court or upon stipulation of the

20

a.

21

handling of the Litigation, and court reporters transcribing the testimony or

22

argument at a hearing, trial or deposition in this Litigation or any appeal there

23

from;

24

b.

25

administrative and clerical employees working under the direct supervision of

26

such counsel, provided each has signed the “Agreement Concerning

27

Information Covered by Protective Order” attached hereto as Exhibit A;

The Court, persons employed by the Court who are necessary for the

Counsel of record in this Litigation, as well as paralegals, technical,

28
Gibson, Dunn &
Crutcher LLP

7

1

c.

2

counsel of record in this Litigation, provided such experts and consultants have

3

signed the “Agreement Concerning Information Covered by Protective Order”

4

attached hereto as Exhibit A;

5

d.

6

this Litigation for purposes of preparing demonstrative or other exhibits,

7

provided such services have signed the “Agreement Concerning Information

8

Covered by Protective Order” attached hereto as Exhibit A;

9

e.

Subject to paragraph 12 hereof, experts or consultants necessary to assist

Graphics, translation, or design services retained by counsel of record in

Commercial copy and e-discovery vendors retained by counsel of record

10

in this Litigation for purposes of this Litigation, provided such vendors have

11

signed the “Agreement Concerning Information Covered by Protective Order”

12

attached hereto as Exhibit A;

13

f.

14

is reasonably necessary and who have signed the “Agreement Concerning

15

Information Covered by Protective Order” attached hereto as Exhibit A

16

(except that persons described in sub-paragraph (g) below do not need to sign

17

Exhibit A to be shown Highly Confidential Material in their depositions);

18

g.

19

Material to be an author, addressee, or copy recipient of the Highly

20

Confidential Material, or as to whom there has been testimony, whether at

21

deposition or trial or by declaration or affidavit, that the person was the author

22

or recipient of the Highly Confidential Material; and

23

h.

24

the Producing Party, and who has signed the “Agreement Concerning

25

Information Covered by Protective Order” attached hereto as Exhibit A.

26

During their depositions, witnesses in the Litigation to whom disclosure

Any person indicated by a document marked Highly Confidential

Any other person, only upon order of the Court or upon stipulation of

12. Qualification of Outside Experts and Consultants: Neither

27

Confidential nor Highly Confidential Material shall be disclosed to any outside

28

experts or consultants who are current employees of a direct competitor of any of the

Gibson, Dunn &
Crutcher LLP

8

1

Toyota entities named in the Litigation. With respect to outside experts or consultants

2

who, within one (1) year from the date of this Order, were employed by a direct

3

competitor of any of the Toyota entities named in the Litigation, Confidential and

4

Highly Confidential Material may be shared with those experts or consultants only

5

after counsel for the Toyota entities named as defendants in this Litigation are given

6

at least twenty (20) business days prior written notice of the identity of the expert

7

or consultant to whom such Confidential or Highly Confidential Material is to be

8

disclosed (including his or her name, address, current job title and the names of any

9

direct competitors by which he has been employed), are afforded an opportunity to

10

object to the disclosure of the Confidential or Highly Confidential Material, and a

11

resolution to any such objection has been reached. Notwithstanding

12

paragraphs 10(c) and 11(c), Confidential Material or Highly Confidential Material

13

may be provided to experts or consultants only for the purpose of aiding, assisting,

14

or allowing such expert or consultant to prepare a written opinion, to prepare to

15

testify, or to assist counsel for a party in this Litigation.

16

13.

Restriction on Disclosure in Actions Outside the United

17

States. Neither Confidential nor Highly Confidential Material shall be disclosed,

18

shared, distributed, or otherwise provided in any manner to legal counsel in

19

pending or threatened litigation against any of the Toyota entities outside of the

20

United States through any other provision of this Protective Order, including but not

21

limited to paragraphs 10, 11, and 12, regardless of whether such legal counsel can

22

be classified as a consultant or affiliate of any US attorney of record in any legal

23

proceedings against any of the Toyota entities within the United States.

24

14.

Use of Discovery Material: Discovery Material shall be used solely for

25

purposes of the Litigation, including any appeal and retrial. Any person or entity in

26

possession of Discovery Material designated Confidential or Highly Confidential

27

shall maintain those materials in accordance with Paragraph 27 below.

28
Gibson, Dunn &
Crutcher LLP

9

1

15.

Agreement Must Be Signed Prior To Disclosure. Each person to

2

whom Confidential or Highly Confidential Material may be disclosed that is also

3

required to sign the “Agreement Concerning Information Covered by Protective

4

Order” (attached hereto as Exhibit A) pursuant to Paragraphs 10(c)-10(h), 10(j),

5

11(b)-11(f), and 11(h) shall do so prior to the time such Material is disclosed to him

6

or her.

7

16.

Exclusion of Individuals From Depositions: Counsel for any

8

Producing Party shall have the right to exclude from depositions any person who is

9

not authorized by this Order to receive documents or information designated

10

Confidential or Highly Confidential, but only during periods of examination or

11

testimony directed to or comprising information that is Confidential or Highly

12

Confidential.

13

17.

Storage Of Confidential Material or Highly Confidential Material:

14

The recipient of any Confidential Material or Highly Confidential Material that is

15

provided under this Protective Order shall maintain such information in a reasonably

16

secure and safe manner that ensures that access is limited to the persons authorized

17

under this Order.

18

18.

Filing of Confidential Material or Highly Confidential Material:

19

Without written permission from the Producing Party or a court order, a party may

20

not file in the public record in this Litigation any Confidential Material or Highly

21

Confidential Material. The parties shall comply with Local Rule 79-5 when seeking

22

to file Confidential Material or Highly Confidential Material under seal.

23

The party desiring to place any Confidential Material or Highly Confidential

24

Material before the Court shall lodge the information in a sealed envelope along with

25

an application to file the papers or the portion thereof containing Confidential Material

26

or Highly Confidential Material under seal and a copy of a proposed order sealing

27

documents. Said envelope shall be endorsed with the title of the Litigation, an

28

indication of the nature of the contents of such sealed envelope, the identity of the

Gibson, Dunn &
Crutcher LLP

10

1

party filing the materials, the phrase “Confidential Material” or “Highly Confidential

2

Material,” and a statement substantially in the following form:

3

T H I S E N V E L O P E C O N T A I N S M A T E R I A L S S U BJE C T T O

4

A PROTECTIVE ORDER ENTERED IN THIS LITIGATION. IT IS

5

NOT TO BE OPENED NOR ARE ITS CONTENTS TO BE

6

DISPLAYED, REVEALED, OR MADE PUBLIC, EXCEPT BY

7

ORDER OF THE COURT. UNLESS THE COURT ORDERS THAT IT

8

NOT BE FILED, IT SHALL BE FILED UNDER SEAL.

9

Additionally, within seven (7) business days from the date that the papers (or portions

10

thereof) were filed under seal consistent with the above procedures, the party who

11

filed the papers under seal also shall file in the public record a version of the papers

12

that has been redacted to omit the Confidential Material or Highly Confidential

13

Material (or any references thereto).

14

The parties shall also comply with Local Rule 79-5.4 with respect to the

15

appropriate treatment of personal identifier information in connection with any

16

filing with the Court.

17

19.

No Prejudice: Agreeing to be bound by this Protective Order,

18

agreeing to and/or producing or receiving Confidential Material or Highly

19

Confidential Material or otherwise complying with the terms of this Order shall not:

20

a. Prejudice in any way the rights of the parties to object to the production

21

of documents they consider not subject to discovery, or operate as an

22

admission by any party that the restrictions and procedures set forth

23

herein constitute adequate protection for any particular information

24

deemed by any party to be Confidential Material or Highly Confidential

25

Material;

26

b. Prejudice in any way the rights of any party to object to the authenticity

27

or admissibility into evidence of any document, testimony or other

28

evidence subject to this Order;

Gibson, Dunn &
Crutcher LLP

11

1

c. Prejudice in any way the rights of a party to seek a determination by the

2

Court whether any Confidential Material or Highly Confidential

3

Material should be subject to the terms of this Order;

4

d. Prejudice in any way the rights of a party to petition the Court for a

5
6

protective order relating to any purportedly confidential information; or
e. Prevent a Disclosing Party from authorizing disclosure of its own

7
8
9

Confidential Material or Highly Confidential Material to any party.
20.

Challenging Designation of Materials: A party shall not be

obligated to challenge the propriety of a Confidential Material or Highly Confidential

10

Material designation at the time made, and failure to do so shall not preclude a

11

subsequent challenge thereto during the pendency of this Litigation.

12

a. Challenge: The Receiving Party may challenge the propriety of a

13

Confidential Material or Highly Confidential Material designation by

14

providing to Producing Party a writing which briefly: (i) identifies with

15

reasonable particularity the documents and/or information which are the

16

subject of the challenge; and (ii) describes the basic legal or factual

17

grounds for the challenge.

18

b. Meet and Confer and Motion: Once a challenge is made, the

19

Producing Party will bear the burden of initiating and conducting a

20

sufficient meet and confer (per Local Rule 37-1). A Party that elects to

21

press a challenge to a confidentiality designation after considering the

22

justification offered by the Producing Party may file and serve a motion

23

that identifies the challenged material and sets forth in detail the basis for

24

the challenge. Such motion must be accompanied by a written joint

25

stipulation prepared in accordance with the procedures set forth in Local

26

Rules 37-2, 37-2.1, and 37-2.2. Until the court rules on the challenge, all

27

parties shall continue to afford the material in question the level of

28

protection to which it is entitled under the Producing Party’s designation.

Gibson, Dunn &
Crutcher LLP

12

1

The Receiving Party must make de-designation requests in good faith.

2

Mass, indiscriminate, or routinized requests for de-designation are

3

prohibited.

4

c. Status of Challenged Designation Pending Judicial Determination:

5

Until the court rules on the timely filed Motion for Protective Order, all

6

parties shall continue to afford the material in question the level of

7

protection to which it is entitled under the Producing Party’s

8

designation.

9

21.

No Application to Public or Otherwise Available Information: This

10

Order shall not limit or restrict a Receiving Party’s use of information that the

11

Receiving Party can demonstrate: (i) was lawfully in the Receiving Party’s possession

12

prior to such information being designated as protected material in the Litigation and

13

that the Receiving Party is not otherwise obligated to treat as confidential; (ii) was

14

obtained from a third party having the right to disclose such information to the

15

Receiving Party without restriction or obligation of confidentiality; or (iii) has been

16

published to the general public. If the Receiving Party believes that the Disclosing

17

Party has designated information that is covered by any of the preceding categories as

18

Confidential Material or Highly Confidential Material, the Receiving Party shall

19

challenge the propriety of such designation using the procedure outlined in paragraph

20

20 above. Any challenged designation remains in force until the propriety of such

21

designation has been decided as outlined above.

22

22. No Waiver of Privilege Based on Disclosure: Pursuant to Federal Rule

23

of Evidence 502(d), Federal Rule of Civil Procedure 26(b)(5)(B), and the applicable

24

rules of professional responsibility, disclosure (including production) of information

25

that a Party or non-party later claims should not have been disclosed because of a

26

privilege, including, but not limited to, the attorney-client privilege or work product

27

doctrine (“Privileged Information”), shall not constitute a waiver of, or estoppel as to,

28

any claim of attorney-client privilege, attorney work-product, or other ground for

Gibson, Dunn &
Crutcher LLP

13

1

withholding production as to which the Producing Party would be entitled in the

2

litigation or any other federal or state proceeding. This Order is intended to provide

3

the full protection afforded by Federal Rule of Evidence 502(d), providing that “A

4

Federal court may order that the privilege or protection is not waived by disclosure

5

connected with the litigation pending before the court – in which event the disclosure

6

also is not a waiver in any other Federal or State proceeding.” Upon discovery by

7

a Producing Party (or upon receipt of notice from another Party) that he/she/it may

8

have produced Privileged Information, the Producing Party shall, within thirty (30)

9

calendar days of such discovery, request the return of such information in writing by

10

identifying the Privileged Information and stating the basis on which the Privileged

11

Information should be withheld from production. After being notified, all other

12

Parties must promptly return, sequester, or destroy the Privileged Information and any

13

copies he/she/it has; must not use or disclose the information until the claim of

14

privilege or other protection is resolved (if the claim of privilege or other

15

protection is disputed); and must take reasonable steps to retrieve the Privileged

16

Information if he/she/it disclosed the Privileged Information before being notified.

17

If any Party disputes the privilege claim (“Objecting Party”), that Objecting Party

18

shall notify the Producing Party of the dispute and the basis therefore in writing

19

within thirty (30) calendar days of receipt of the request for the return of the

20

Privileged Information. The Parties thereafter shall meet and confer in good faith

21

regarding the disputed claim within thirty (30) calendar days. In the event that the

22

Parties do not resolve their dispute, the Objecting Party may bring a motion for a

23

determination of whether a privilege applies. The Producing Party must preserve

24

the information claimed to be privileged or otherwise protected until the claim is

25

resolved. The information claimed to be privileged remains protected as privileged

26

until the claim is resolved. Except as expressly set forth herein, nothing in this

27

provision shall limit the bases on which the Objecting Party may challenge the

28

assertion of any privilege or protection by the Producing Party.

Gibson, Dunn &
Crutcher LLP

14

1

23. Additional Parties or Attorneys: In the event additional parties join or

2

intervene in this Litigation, the newly joined party(ies) shall not have access

3

to Confidential Material or Highly Confidential Material until its counsel of record

4

has executed and, at the request of any party, filed with the Court its agreement to be

5

fully bound by this Order. If any additional attorneys make appearances in this

6

Litigation, those attorneys shall not have access to Confidential Material or

7

Highly Confidential Material until they execute the “Agreement Concerning

8

Information Covered by Protective Order” attached hereto as Exhibit A.

9

24. Protective Order Remains In Force: This Protective Order shall

10

remain in force and effect until modified, superseded, or terminated by consent of the

11

parties or by order of the Court made upon reasonable written notice. Unless

12

otherwise ordered, or agreed upon by the parties, this Protective Order shall survive

13

the termination of this Litigation. The Court retains jurisdiction even after

14

termination of this Litigation to enforce this Protective Order and to make

15

such amendments, modifications, deletions and additions to this Protective Order as

16

the Court may from time to time deem appropriate.

17
18

25. No Prejudice For Further Relief: This Protective Order is without
prejudice to the right of any party to seek other or further relief from the Court.

19

26. No Waiver of Grounds For Producing Material: This Protective

20

Order shall not be construed as waiving any right to assert a claim of privilege,

21

relevance, overbreadth, burdensomeness or other grounds for not producing material

22

called for, and access to such material shall be only as otherwise provided by the

23

discovery rules and other applicable laws.

24

27. Conclusion of Litigation: Within ninety (90) days after receiving notice

25

of the entry of an order, judgment or decree finally disposing of this Litigation, all

26

persons having received Confidential Material or Highly Confidential Material shall

27

either return such material and all copies thereof to counsel for the Producing Party, or

28

destroy all such Confidential Material or Highly Confidential Material and, in either

Gibson, Dunn &
Crutcher LLP

15

1

case, certify that fact to counsel for the Producing Party. Counsel of record shall

2

make arrangements for the return of Confidential Material or Highly Confidential

3

Material that counsel of record provided to any persons or entities in paragraphs 10

4

and 11, except the Court, court personnel and court reporters. Outside counsel of

5

record for the parties shall be entitled to retain court papers, depositions, trial

6

transcripts and attorney work product, provided that such outside counsel of record

7

shall not disclose Confidential Material or Highly Confidential Material to any person

8

except pursuant to a court order or agreement with the party that produced the

9

Confidential Material or Highly Confidential Material. All material returned to the

10

parties or their counsel by the Court shall likewise be disposed of in accordance with

11

this paragraph.

12

28. No Loss of Confidential or Highly Confidential Status By Use In

13

Litigation or Appeal: In the event that any Confidential or Highly Confidential

14

Material is used in any court proceeding in this Litigation or any appeal therefrom,

15

such Confidential or Highly Confidential Material shall not lose its status as

16

Confidential or Highly Confidential through such use. Counsel shall comply with

17

all applicable local rules and shall confer on such procedures that are necessary to

18

protect the confidentially of any documents, information and transcripts used in the

19

course of any court proceedings, including petitioning the Court to close the court

20

room.

21

29. Protected Material Subpoenaed or Ordered Produced in Other

22

Actions: If any person receiving documents covered by this Order (the “Receiver”) is

23

served with a subpoena, order, interrogatory, or document or civil investigative

24

demand (collectively, a “Demand”) issued in any other action, investigation, or

25

proceeding, and such Demand seeks Discovery Material that was produced or

26

designated as Confidential Material or Highly Confidential Material by someone other

27

than the Receiver, the Receiver shall give a prompt written notice by hand or facsimile

28

transmission within ten (10) business days of receipt of such Demand to the person,

Gibson, Dunn &
Crutcher LLP

16

1

party, or third party who produced or designated the material as Confidential

2

Material or Highly Confidential Material, and shall object to the production of such

3

materials on the grounds of the existence of this Order. The burden of

4

opposing the enforcement of the Demand shall fall upon the party who produced or

5

designated the material as Confidential Material or Highly Confidential Material. Any

6

motion opposing enforcement of the Demand shall be made within thirty (30) days of

7

receipt of notice of the Demand. Until such time as the dispute is resolved, no

8

Confidential Material or Highly Confidential Material shall be produced pursuant to

9

the Demand. Compliance by the Receiver with any order directing production

10

pursuant to the Demand of any Confidential Material or Highly Confidential Material

11

shall not constitute a violation of this Order. Nothing in this Order shall be construed

12

as authorizing a party to disobey a lawful subpoena issued in another action.

13

30. Advice Based on Discovery Material Allowed: Nothing in this

14

Protective Order shall bar or otherwise restrict any attorney from rendering advice to

15

his client with respect to this litigation and, in the course of rendering advice,

16

referring to or relying generally on the examination of Confidential Material or

17

Highly Confidential Material; provided, however, that in rendering such advice

18

and in otherwise communicating with his client, the attorney shall not disclose the

19

contents of any Confidential Material or Highly Confidential Material produced by

20

another party if that disclosure would be contrary to the terms of this Protective

21

Order.

22

31. Redaction Allowed:

Any Producing Party may redact from the

23

documents and things it produced matter that the Producing Party claims is subject

24

to attorney-client privilege, work product immunity, a legal prohibition or

25

protection against disclosure, or any other privilege or immunity. The Producing

26

Party shall mark each thing where matter has been redacted with a legend stating

27

“REDACTED,” as appropriate, or a comparable notice. Where a document

28

consists of more than one page, at least each page on which information has been

Gibson, Dunn &
Crutcher LLP

17

1

redacted shall be so marked. The Producing Party shall preserve an unredacted

2

version of each such document. In addition to the foregoing, the following shall

3

apply to redactions of Protected Data:

4

a. With respect to any individual, any party may redact Protected Data

5

that it claims, in good faith, requires protections under the terms of

6

this Order. Protected Data, however, shall not be redacted from

7

Discovery Material to the extent it directly relates to or identifies an

8

individual named as a party in this Litigation. Protected Data of an

9

individual named as a party shall otherwise receive the same

10

protections and treatment afforded to other Protected Data under this

11

Protective Order.

12
13
14

b. Protected Data shall be redacted from any public filing not filed
under seal.
c. The right to and process for challenging the designation of redactions

15

shall be the same as the right to and process for challenging the

16

designation of Confidential Material and Highly Confidential

17

Material as set forth in paragraph 20. If counsel for the parties agree

18

that Discovery Material initially redacted shall not be subject to

19

redaction or shall receive alternative treatment, or the Court orders

20

that those materials shall not be subject to redaction or shall receive

21

alternative treatment, and the Discovery Materials are subsequently

22

produced in unredacted form, then those unredacted Discovery

23

Materials shall bear the legend, “Unredacted Protected Data – Highly

24

Confidential” and shall continue to receive the protections and

25

treatment afforded to documents bearing the Highly Confidential

26

designation.

27

32. Violations of Protective Order: In the event that any person or party

28

should violate the terms of this Protective Order, the aggrieved Disclosing Party

Gibson, Dunn &
Crutcher LLP

18

1

should apply to the Court obtain relief against any such person or party violating or

2

threatening to violate any of the terms of this Protective Order. In the event that the

3

aggrieved Disclosing Party seeks injunctive relief, it must petition the District

4

Judge or Magistrate Judge for such relief, which may be granted at the sole discretion

5

of the District Judge or Magistrate Judge. The parties and any other person subject to

6

the terms of this Protective Order agree that this Court shall retain jurisdiction over

7

it and them for the purpose of enforcing this Protective Order.

8

33. Headings: The headings herein are provided only for the convenience

9

of the parties, and are not intended to define or limit the scope of the express terms of

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

this Protective Order.
DATED: August 8, 2011

BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
/s/ Blair A. Nicholas
BLAIR A. NICHOLAS
([e-mail])
ELIZABETH P. LIN
([e-mail])
BENJAMIN GALDSTON
([e-mail])
TAKEO A. KELLAR
([e-mail])
DAVID R. KAPLAN
([e-mail])
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Tel: [phone]; Fax: [phone]
-andGERALD H. SILK
([e-mail])
1285 Avenue of the Americas, 38th Floor
New York, NY 10019
Tel: [phone]
Fax: [phone]
Lead Counsel for the Class and Counsel for Lead
Plaintiff Maryland State Retirement and Pension
System

27
28
Gibson, Dunn &
Crutcher LLP

19

1

6

FAIRBANK & VINCENT
ROBERT H. FAIRBANK
(Bar No. 76359)
([e-mail])
DIRK L. VINCENT
(Bar No. 157961)
([e-mail])
444 S. Flower Street, Suite 3860
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]

7

Liaison Counsel for the Class

8

DOUGLAS F. GANSLER
Attorney General of Maryland
CAMPBELL KILLEFER
Deputy Chief of the Civil Litigation Division
([e-mail])
JOHN J. KUCHNO
Assistant Attorney General
([e-mail])
MARYLAND OFFICE OF ATTORNEY
GENERAL
200 St. Paul Place, 20th Floor
Baltimore, MD 21202
Tel: [phone]
Fax: [phone]

2
3
4
5

9
10
11
12
13
14
15
16

Counsel for Lead Plaintiff Maryland State
Retirement and Pension System

17

GIBSON, DUNN & CRUTCHER LLP

18

/s/ Kay Kochenderfer
KAY E. KOCHENDERFER
([e-mail])
GARETH EVANS
([e-mail])
333 South Grand Avenue
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]

19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

SHEARMAN & STERLING LLP
JEFFREY S. FACTER
([e-mail])
PATRICK D. ROBBINS
([e-mail])
525 Market Street, Suite 1500
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
-and20

1

STUART J. BASKIN
([e-mail])
599 Lexington Ave.
New York, NY 10022
Tel: [phone]
Fax: [phone]

2
3
4

Attorneys for Defendants Toyota Motor Corporation,
Toyota Motor Sales, U.S.A., Inc., Toyota Motor
North America, Inc., Katsuake Watanabe, Fujio Cho,
Robert S. Carter, Irving A. Miller, Yoshimi Inaba,
James E. Lentz III and Robert C. Daly

5
6
7

ORDER

8
9
10

IT IS SO ORDERED.
Dated: August 31 , 2011.

11
12
13
14

Hon. Andrew J. Wistrich
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

21

1

EXHIBIT A

2
3

UNITED STATES DISTRICT COURT

4

CENTRAL DISTRICT OF CALIFORNIA

5
6
7

In re Toyota Motor Corporation
Securities Litigation

8
9
10

Master File No. CV-10-0922 DSF (AJWx)
AGREEMENT CONCERNING
INFORMATION COVERED BY
STIPULATED PROTECTIVE ORDER
RE CONFIDENTIAL AND HIGHLY
CONFIDENTIAL INFORMATION

11
12
13
14

I, __________________________________, hereby acknowledge that I have

15

received a copy of the Stipulated Protective Order Re Confidential and Highly

16

Confidential Information entered in this action (Case No. CV-10-0922 DSF (AJWx))

17

by the United States District Court for the Central District of California (hereinafter

18

“the Protective Order”).

19
20
21
22

I have either read the Protective Order or have had the terms of the Protective
Order explained to me by my attorney.
I understand the terms of the Protective Order and agree to comply with and to
be bound by such terms.

23

If I receive documents or information designated as Confidential Material or

24

Highly Confidential Material, (as those terms are defined in the Protective Order), I

25

understand that such information is provided to me pursuant to the terms and

26

restrictions of the Protective Order.

27
28
Gibson, Dunn &
Crutcher LLP

1

1

I agree to hold in confidence and not further disclose or use for any purpose

2

(other than is permitted by the Protective Order) any information disclosed to me

3

pursuant to the terms of the Protective Order.

4

I hereby submit myself to the jurisdiction of the United States District Court for

5

the Central District of California for resolution of any matters pertaining to the

6

Protective Order.

7

My address is _____________________________________________

8

My present employer is _____________________________________

9
10

Dated: _____________________________

11

Signed: ____________________________

12
13
14

PROPOSED ORDER RE JOINT STIPULATION.DOCX

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP

2