Albert Heber v. Toyota Motor Sales, U.S.A., Inc.

Filing 52

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 51 . (kh)

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Amir Nassihi (SBN 235936)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
One Montgomery, Suite 2700
San Francisco, California 94104-4505
Telephone: [phone]
Facsimile: 415.391.0281
Frank Rothrock (SBN 54452)
[e-mail]
Naoki Kaneko (SBN 252285)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
Jamboree Center
5 Park Plaza, Suite 1600
Irvine, California 92614
Telephone: [phone]
Facsimile: 949.475.0016
Attorneys for Defendant
TOYOTA MOTOR SALES, U.S.A., INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION – SANTA ANA

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JENNIFER GRAMMER, JODY PLA,
DOUGLAS POWELL, SHANAH
ZISHKA, JANICE TOLER, BOBBY
YORK, MELANIE MUNNS,
MATTHEW SIFFERMANN, ALBERT
HEBER, JOSEPH and KIM LESKO,
h/w, RAYMOND BENNETT and
SHEILA FAULKNER, h/w, PENNY
PORTER, JAMES DONOGHUE,
LESLIE COCHRANE, COLE and
SHANNON MICHAELIS, h/w,
STEPHEN BOWLING, HEIDI
BROWDER, and HEATHER and
DAVID JOHNS, h/w, individually and
on behalf of all others similarly situated,

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Plaintiffs,
vs.
TOYOTA MOTOR CORPORATION,
TOTOYA MOTOR SALES, U.S.A.,
INC., and DOES 1-10,

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Defendants.

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Case No. 8:16-cv-01525-AG-JCG
Judge: Honorable Jay C. Gandhi
STIPULATED PROTECTIVE ORDER
*DISCOVERY MATTER*
[Filed concurrently with Stipulation for
Protective Order]
Complaint Filed: Sept. 2, 2016

STIPULATED PROTECTIVE ORDER
CASE NO. 8:16-CV-01525-AG-JCG
408851 v1

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To expedite the flow of discovery material, facilitate the prompt resolution of

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disputes over confidentiality, adequately protect material entitled to be kept

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confidential, and ensure that protection is afforded only to material so entitled,

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plaintiffs Jennifer Grammer, et al. and defendant Toyota Motor Sales, U.S.A, Inc.

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(“Toyota”) (collectively, “Parties”), have stipulated pursuant to Rule 26(c) of the

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Federal Rules of Civil Procedure, and IT IS HEREBY ORDERED THAT the

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following provisions shall govern the documents, materials or other things or portions

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thereof (and the information contained therein) produced in discovery by any party to

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this litigation:

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1.

APPLICABILITY OF THE PROTECTIVE ORDER. This Stipulated

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Order Governing the Designation and Handling of Confidential Materials (hereinafter

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“Order”) shall govern for pre-trial purposes the handling of documents, depositions,

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deposition exhibits, interrogatory responses, responses to requests for admissions,

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

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pursuant to the Federal Rules of Civil Procedure by or from a Party in connection with

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the Action (this information hereinafter referred to as “Discovery Material”). All

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references to “Party,” “Receiving Party,” “Producing Party” or “Designating Party”

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throughout this Order are intended to include non-parties.

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2.

DESIGNATION OF MATERIAL AS “CONFIDENTIAL” OR

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“HIGHLY CONFIDENTIAL.”

Any Producing Party may designate Discovery

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Material as “Confidential” or “Highly Confidential” under the terms of this Order if

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the Producing Party in good faith reasonably believes that such Discovery Material

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contains non-public, confidential, personal, proprietary or commercially sensitive

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information that requires protections provided in this Order (hereinafter referred to as

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“Confidential Material” or “Highly Confidential Material”). Any Discovery Material

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designated “Confidential” or “Highly Confidential” shall, prior to being designated as

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such, be reviewed by counsel for the Designating Party.

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STIPULATED PROTECTIVE ORDER
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a. “Confidential Material.”

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For purposes of this Order, information

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considered to be Confidential Material includes any information that a

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Party believes in good faith to be confidential or sensitive non-public

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

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

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commercial information, as such terms are used in Rule 26(c)(1)(G) of

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the Federal Rules of Civil Procedure and any applicable case law

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interpreting Rule 26(c)(1)(G).

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b. “Highly Confidential Material.” For purposes of this Order, Highly

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Confidential Material shall include, but is not limited to, any Protected

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Data (defined below) and/or Confidential Materials as defined herein,

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which also includes non-public product design and testing information or

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extremely sensitive, highly confidential, non-public information,

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consisting either of trade secrets or proprietary or other highly

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confidential business, financial, regulatory, or strategic information

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(including information regarding business plans, technical data, and non-

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

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competitive or business injury to the Producing Party. Certain Protected

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Data may compel alternative or additional protections beyond those

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afforded Highly Confidential Material, in which event the parties shall

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meet and confer in good faith, and, if unsuccessful, shall move the Court

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for appropriate relief.
c. Confidential Material and Highly Confidential Material are collectively

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defined as “Covered Information.”

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3.

MARKING OF DOCUMENTS.

The designation of Discovery

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Material as Confidential Material or Highly Confidential Material or Protected Data

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for purposes of this Order shall be made in the following manner:

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a. TIFF Documents. In the case of documents or other materials (apart

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

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by affixing the legend “Confidential” or “Highly Confidential” to all

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pages in each document containing any Confidential Material or Highly

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Confidential Material, respectively.

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b. Native Documents. With respect to documents or materials containing

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Covered Information produced in Native Format, the Designating Party

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shall include the highest level of confidentiality designation in the

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filename.

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c. Designating Depositions. With respect to any deposition, confidential

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treatment may be invoked by designating specific pages and/or lines as

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“Confidential” or “Highly Confidential” on the record at the deposition,

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or by serving such designations within 15 days after receipt of the

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transcript of the deposition in which the designations are made. All

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deposition transcripts shall be treated as Highly Confidential for 15 days

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following receipt of the transcript.
d. Non-Written Materials.

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Any non-text Covered Information (e.g.,

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videotape, audio tape, computer disk, etc.) may be designated as such by

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labeling the outside of such material as “Confidential” or “Highly

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Confidential.” In the event a Receiving Party generates any “hard copy”

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transcription or printout from any such designated non-written materials,

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the person who generates such “hard copy” transcription or printout shall

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take reasonable steps to maintain the confidentiality of such materials and

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properly identify and stamp each page of such material as “Confidential”

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or “Highly Confidential” consistent with the original designation by the

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Producing Party.

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STIPULATED PROTECTIVE ORDER
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4.

DISCLOSURE OF COVERED INFORMATION.

The failure to

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designate Covered Information does not constitute a waiver of such claim and may be

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remedied by prompt supplemental written notice upon discovery of the disclosure,

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with the effect that such Covered Information will be subject to the protections of this

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Order. The Receiving Party shall exercise good faith efforts to ensure that copies

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made of Covered Information produced to it, and copies made by others who obtained

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such Covered Information directly or indirectly from the Receiving Party, include the

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appropriate confidentiality legend, to the same extent that the Covered Information

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has been marked with the appropriate confidentiality legend by the Producing Party.

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5.

MATERIALS

PREPARED

BASED

UPON

COVERED

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INFORMATION.

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materials prepared or based on an examination of Covered Information, that quote

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from or paraphrase Covered Information with such specificity that the Covered

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Information can be identified shall be accorded the same status of confidentiality as

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the underlying Covered Information from which they are made, shall be designated

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with the appropriate confidentiality legend, and shall be subject to all of the terms of

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this Protective Order.

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6.

Any notes, lists, memoranda, indices, compilations, or other

NOTICE TO NON-PARTIES. Any Party issuing a subpoena to a non-

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party shall enclose a copy of this Protective Order with a request that, within ten (10)

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business days, the non-party either request the protection of this Protective Order or

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

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Protective Order or wishes to seek different protection.

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7.

GOOD-FAITH BELIEF.

For purposes of this Order, the Party

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designating Discovery Material as “Confidential” or “Highly Confidential” (the

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“Designating Party”) bears the burden of establishing the appropriate designation of

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all such Discovery Material.

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“Confidential” or “Highly Confidential” pursuant to this Order shall constitute the

The designation of any Discovery Material as

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STIPULATED PROTECTIVE ORDER
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verification by the Designating Party and its counsel that the material constitutes

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“Confidential” or “Highly Confidential” as defined above. Blanket designation of

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documents or information as “Confidential” or “Highly Confidential” without regard

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to the specific contents of each document or piece of information is prohibited.
8.

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If at any time prior to the trial of this Action a Party realizes that

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previously produced Discovery Material should be designated as “Confidential” or

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“Highly Confidential” the Party may so designate by advising all other Parties in

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writing and by producing replacement documents or material with the appropriate

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“Confidential” or “Highly Confidential” designation as described above.

The

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designated documents or material will thereafter be treated as “Confidential” or

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“Highly Confidential” pursuant to this Order. Upon receipt of such designation in

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writing and re-production of the material with the “Confidential” or “Highly

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Confidential” stamp, the Parties and other persons subject to this Order shall take

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reasonable and appropriate steps to notify any and all recipients of the Discovery

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Material about the protected status of the newly designated “Confidential” or “Highly

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Confidential” and to retrieve the newly designated “Confidential” or “Highly

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Confidential” from any person who is not permitted by this Order to have Confidential

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Information.
9.

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No Party receiving Covered Information shall be under any obligation to

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object to the designation of any document at the time such designation is made or at

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any time thereafter. No Party shall, by failure to object, be found to have acquiesced

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or agreed to such designation or be barred from objecting to such designation at any

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time.

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10.

PERSONS

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MATERIAL.

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AUTHORIZED

TO

RECEIVE

CONFIDENTIAL

Confidential Material may be disclosed only to the following

“Qualified Persons”:
a. the Court, including attorneys, employees, judges, magistrates,

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secretaries, special masters, stenographic reporters, staff, transcribers and

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all other personnel necessary to assist the Court in its function, and the

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jury;
b. mediators or other individuals engaged or consulted in settlement of all

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or part of this Action;

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c. the Parties;

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d. counsel of record for the Parties, including all partners, members, and

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associate attorneys of such counsel’s law firms who are assisting in the

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conduct of the Action, as well as any other counsel and support personnel

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of such counsel who may be assisting counsel of record for the parties in

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the conduct of the Action, and all clerks, employees, independent

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contractors, consultants, investigators, paralegals, assistants, secretaries,

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staff and stenographic, computer, audio-visual and clerical employees

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and agents thereof when operating under the supervision of such partners

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or associate attorneys;

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e. litigation support services, including outside copying services, court

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reporters, stenographers or companies engaged in the business of

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supporting computerized or electronic litigation discovery or trial

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preparation, retained by a Party or its counsel, provided that they execute

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Exhibit A as described in Paragraph 13 of this Order;

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f. any individual expert, consultant, or expert consulting firm retained by

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counsel of record in connection with this Action to the extent necessary

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for the individual expert, consultant, or expert consulting firm to prepare

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a written opinion, to prepare to testify, or to assist counsel of record in

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the prosecution or defense of this Action, provided, however, that: (i) the

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disclosure shall be made only to an individual expert, or to members,

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partners, employees or agents of an expert consulting firm as the expert

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STIPULATED PROTECTIVE ORDER
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consulting firm shall designate as the persons who will undertake the

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engagement on behalf of the expert consulting firm (the “Designated

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Expert Personnel”); (ii) the individual expert or Designated Expert

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Personnel use the information solely in connection with this Action; (iii)

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the individual and/or a representative of each expert consulting firm sign

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the written assurance attached on Exhibit A on behalf of any Designated

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Expert Personnel associated with that firm; and (iv) excluding any

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retention for this Action, the individual expert and each of the Designated

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Expert Personnel is neither a current nor former (within the past year

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from the date of this Order) employee of any party or any entity which

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directly competes with, or is a customer of or direct seller to Toyota; and

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(v) the terms of Paragraph 16 of this Order are met;

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g. Any person (i) who created, authored, received or reviewed such Covered

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Information; (ii) is or was a custodian of the Covered Information; (iii) is

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identified on such Covered Information; or (iv) is or was an employee of

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the producing party and is reasonably believed to have knowledge of the

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matters in the Covered Information;

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h. auditors and insurers of the Parties; and

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i. any other person as may be designated by written agreement by the
Producing Party or by order of the Court.

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11.

PERSONS

AUTHORIZED

TO

RECEIVE

HIGHLY

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CONFIDENTIAL MATERIAL.

Except as specifically provided for in this or

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subsequent Court orders, Highly Confidential Material, Protected Data, or their

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contents may be disclosed, summarized, described, or otherwise communicated or

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made available in whole or in part only to the persons identified and conditions set

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forth in Paragraphs 10(a)-(b), (d)-(f) and (i), and:

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STIPULATED PROTECTIVE ORDER
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a. Members of the in-house legal departments for the parties or their parents

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or affiliates, including their paralegals, investigative, technical,

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secretarial, and clerical personnel who are engaged in assisting them in

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this Litigation; or

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b. Any person (1) who created, authored, received or reviewed such

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Covered Information, is or was a custodian of the Covered Information,

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is identified on such Covered Information; and (2) who has signed

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Exhibit A as described in paragraph 13.

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12.

EXECUTING THE NON-DISCLOSURE AGREEMENT.

Each

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person to whom Covered Information is disclosed, except the persons identified in ¶

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10 (a) above, shall execute a non-disclosure agreement in the form annexed hereto as

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Exhibit A before receiving Covered Information. Copies of the executed Exhibit A

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shall be retained by counsel disclosing Covered Information to such person.

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13.

CHALLENGING

“CONFIDENTIAL”,

“HIGHLY

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CONFIDENTIAL, AND “PROTECTED DATA” DESIGNATIONS.

A Party

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objecting to the designation of any material as Confidential, Highly Confidential or

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Protected Data shall give written notice to the Designating Party. Upon receipt of the

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written objection, counsel for the Designating Party shall, within ten days, provide a

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written response to the objecting Party explaining the basis and supporting authority

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for the designation; otherwise the document(s) or material(s) shall be deemed to be no

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longer Confidential or Highly Confidential without a Court order. The Parties shall

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meet and confer in good faith to attempt to resolve the dispute without resort to Court

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intervention. If the Objecting Party and the Designating Party cannot resolve their

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dispute through such meet and confer discussions, within 15 court days after the

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Parties have reached an impasse after meet and confer efforts, the Challenging Party

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shall file and serve a motion to challenge confidentiality pursuant to Local Rule 37-2.

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The Designating Party has the burden of establishing that the document is entitled to

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protection. Any material so designated shall remain Confidential, Highly Confidential

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or Protected Data, and shall be subject to all of the restrictions on its disclosure and

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use set forth in this Order until such time as the Court may determine otherwise. In

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the event the Court rules that the challenged material is not Confidential or Highly

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Confidential, the Designating Party shall reproduce copies of all materials so

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designated without Confidential or label at the Designating Party’s expense within ten

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business days.

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14.

SUBPOENA FOR COVERED INFORMATION. If any Party has

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obtained Covered Information under the terms of this Order and receives a request to

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produce such Covered Information by subpoena or other compulsory process

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commanding the production of such Covered Information, such Party shall promptly

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notify the Designating Party, including in such notice the date set for the production of

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such subpoenaed information and the Designating Party shall object to the production

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of such materials on the grounds of the existence of this Order.

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15.

USE OF DISCOVERY MATERIAL. Covered Information shall be

used solely for purposes of the Litigation, including any appeal.
16.

EXCLUSION OF INDIVIDUALS FROM DEPOSITIONS. Counsel

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shall have the right to exclude any person who is not authorized by this Order to

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receive documents or information designated as Covered Information from any

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deposition where testimony regarding Covered Information or the use of Covered

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Information is likely to arise.

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17.

SECURITY OF COVERED INFORMATION.

Any person in

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possession of another Party's Covered Information shall exercise the same care with

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regard to the storage, custody, or use of Covered Information as they would apply to

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their own material of the same or comparable sensitivity. Receiving Parties must take

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reasonable precautions to protect Covered Information from loss, misuse and

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unauthorized access, disclosure, alteration and destruction including, but not limited

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to:

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a. Covered Information in electronic format shall be maintained in a secure

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litigation support site(s) that applies standard industry practices regarding

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data security including, but not limited to, application of access control

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rights to those persons entitled to access Covered Information under this

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Order;
b. An audit trail of use and access to litigation support site(s) shall be

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maintained while this Litigation, including any appeals, is pending;

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c. Any Covered Information downloaded from the litigation support site(s)

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in electronic format shall be stored only on device(s) (e.g. laptop, tablet,

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smartphone, thumb drive, portable hard drive) that are password

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protected and/or encrypted with access limited to persons entitled to

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access Covered Information under this Order. If the user is unable to

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password protect and/or encrypt the device, then the Covered Information

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shall be password protected and/or encrypted at the file level.

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d. Covered Information in paper format is to be maintained in a secure

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location with access limited to persons entitled to access Covered

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Information under this Order; and

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e. Summaries of Covered Information, including any lists, memorandum,

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indices or compilations prepared or based on an examination of Covered

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Information, that quote from or paraphrase Covered Information in a

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manner that enables it to be identified shall be accorded the same status

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of confidentiality as the underlying Covered Information.

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f. If the recipient of Covered Information is shipping data in electronic

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format, the recipient shall encrypt the data prior to shipping and provide

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the encryption key in separate correspondence. If hard copy documents

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are shipped, the Receiving Party will ship the documents using secure

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packaging tape via Federal Express or UPS and retain a tracking number

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for the materials. If the Receiving Party learns at any time that the

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Covered Information has been retrieved or viewed by unauthorized

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parties during shipment, it will immediately notify the Producing Party

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and take all reasonable measures to retrieve the improperly disclosed

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materials.

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If the Receiving Party discovers a breach of security1 relating to the Covered

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Information of a Producing Party, the Receiving Party shall: (1) provide written notice

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to the Producing Party of the breach within 48 hours of the Receiving Party's

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discovery of the breach; (2) investigate and remediate the effects of the breach, and

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provide the Producing Party with assurance reasonably satisfactory to the Receiving

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Party that the breach shall not recur; and (3) provide sufficient information about the

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breach that the Producing Party can ascertain the size and scope of the breach. The

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Receiving Party agrees to cooperate with the Producing Party or law enforcement in

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investigating any such security incident.
18.

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FILING COVERED INFORMATION. The Parties acknowledge that

this Order creates no entitlement to file Covered Information under seal.
19.

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FINAL TERMINATION.

Upon final termination of the Action,

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including any and all appeals, counsel for each Party shall, upon request of the

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Producing Party, return all Covered Information, including any copies, excerpts and

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summaries thereof, or shall destroy same at the option of the Receiving Party, and

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shall purge all such information from all machine-readable media on which the

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Covered Information resides. Notwithstanding the foregoing, counsel for each Party

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may retain all pleadings, briefs, memoranda, discovery responses, deposition

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transcripts, deposition exhibits, expert reports, motions, and other documents filed

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Breach is defined to include, but is not limited to, the confirmed or suspected: (i)
disclosure or use of Covered Information by or to an unauthorized person; and/or (ii)
the loss, theft or hacking of a device containing Covered Information.
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

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_________________ [print or type full address], have read and understand the

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Stipulated Protective Order that was issued by the United States District Court for the

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Central District of California on

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name of case and civil action no.]. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order. In compliance with this Order, I will not

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disclose in any manner any information or item that is subject to this Stipulated

10

Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

[insert date] in the case of [insert

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Signed this ____ day of ________________, 20___, at ________________
[insert city and state where sworn and signed].
Signature: __

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STIPULATED PROTECTIVE ORDER
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