Paul Jackley v. General Motors Company et al

Filing 15

STIPULATED PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 14 . (see order for details) (hr)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12

PAUL JACKLEY,

13

Case No. 8:17-cv-02085-JVS-FFM
Plaintiff,

14

vs.

[PROPOSED] STIPULATED
PROTECTIVE ORDER

15
16

GENERAL MOTORS COMPANY; and
DOES 1 through 50 inclusive,

17

Defendants.

18
19
20
21
22

1.

PURPOSES AND LIMITATIONS

23

Disclosure and discovery activity in this action are likely to involve production

24

of confidential, proprietary, or private information for which special protection from

25

public disclosure and from use for any purpose other than prosecuting this litigation

26

may be warranted. Accordingly, the parties hereby stipulate to and petition the court

27

to enter the following Stipulated Protective Order. The parties acknowledge that this

28

Order does not confer blanket protections on all disclosures or responses to discovery
1

1

and that the protection it affords from public disclosure and use extends only to the

2

limited information or items that are entitled to confidential treatment under the

3

applicable legal principles.

4

Section 12.3 below, that this Stipulated Protective Order does not entitle them to file

5

confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

6

that must be followed and the standards that will be applied when a party seeks

7

permission from the court to file material under seal.

The parties further acknowledge, as set forth in

8

This action is likely to involve proprietary hiring and benefits manuals, policies

9

and summaries, sales performance data, and other valuable research, development,

10

commercial, financial, technical, and/or proprietary information for which special

11

protection from public disclosure and from use for any purpose other than prosecution

12

of this action is warranted.

13

information consist of, among other things, confidential business or financial

14

information, information regarding confidential business practices, or other

15

confidential, development, or commercial information (including information

16

implicating privacy rights of third parties), information otherwise generally

17

unavailable to the public, or which may be privileged or otherwise protected from

18

disclosure under state or federal statutes, court rules, case decisions, or common law.

Such confidential and proprietary materials and

19

Accordingly, to expedite the flow of information, to facilitate the prompt

20

resolution of disputes over confidentiality of discovery materials, to adequately

21

protect information the parties are entitled to keep confidential, to ensure that the

22

parties are permitted reasonable necessary uses of such material in preparation for and

23

in the conduct of trial, to address their handling at the end of the litigation, and serve

24

the ends of justice, there is good cause for a protective order for such information.

25

It is the intent of the parties that information will not be designated as confidential for

26

tactical reasons and that nothing be so designated without a good faith belief that it

27

has been maintained in a confidential, non-public manner, and there is good cause

28

why it should not be part of the public record of this case.
2

1
2

2.

DEFINITIONS
2.1

Party: any party to this action, including all of its officers, directors,

3

employees, consultants, retained experts, and Outside Counsel of Record and their

4

support staff.

5
6
7

2.2

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.3

Outside Counsel of Record: attorneys who are not employees of a party

8

to this action but are retained to represent or advise a party to this action and have

9

appeared in this action on behalf of that party or are affiliated with a law firm which

10
11

has appeared on behalf of a party.
2.4

In-House Counsel: attorneys who are employees of a party to this action.

12

In-House Counsel does not include Outside Counsel of Record or any other kind of

13

counsel.

14
15
16

2.5

Counsel (without qualifier): Outside Counsel of Record and In-House

Counsel (as well as their support staff).
2.6

Disclosure or Discovery Material: all items or information, regardless of

17

the medium or manner in which they are generated, stored, or maintained (including,

18

among other things, testimony, transcripts, and tangible things), that are produced or

19

generated in disclosures or responses to discovery in this matter.

20

2.7

“CONFIDENTIAL” Information or Items: information (regardless of

21

how it is generated, stored, or maintained) or tangible things that qualify for protection

22

under Federal Rule of Civil Procedure 26(c), including confidential, proprietary,

23

commercial information pertaining to the operation of Defendant’s business.

24
25
26
27

2.8

Protected Material:

any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.9

Producing Party: a Party or Non-Party that produces Disclosures or

Discovery Material in this action.

28
3

2.10 Receiving Party: a Party that receives Disclosure of Discovery Material

1
2

from a Producing Party.
2.11 Designating Party: a Party or Non-Party that designates information or

3
4

items that it produces in response to discovery as “CONFIDENTIAL.”
2.12 Challenging Party: a Party or Non-Party that challenges the designation

5
6

of information or items as “CONFIDENTIAL” under this Order.

7

2.13 Expert: a person with specialized knowledge or experience in a manner

8

pertinent to the litigation who has been retained by a Party or its counsel to serve as an

9

expert witness or as a consultant in this action.

10

2.14 Professional Vendors: persons or entities that provide litigation support

11

services (e.g., photocopying, videotaping, translating, preparing exhibits or

12

demonstrations, and organizing, storing, or retrieving data in any form or medium)

13

and their employees and subcontractors.

14

3.

SCOPE

15

The protections conferred by this Stipulation and Protective Order cover not

16

only Protected Material (as defined above), but also (1) any information copied or

17

extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations

18

of Protected Material; and (3) any testimony, conversations, or presentations by

19

Parties or their Counsel that might reveal Protected Material. However, the protections

20

conferred by this Stipulation and Order do not cover the following information: (a)

21

any information that is in the public domain at the time of disclosure to a Receiving

22

Party or that becomes part of the public domain after its disclosure to a Receiving

23

Party as a result of publication not involving a violation of this Order, including

24

becoming part of the public record through trial or otherwise; and (b) any information

25

known to the Receiving Party prior to the disclosure or obtained by the Receiving

26

Party after the disclosure from a source who obtained the information lawfully and

27

under no obligation to confidentiality to the Designating Party. Any use of Protected

28

Material at trial shall be governed by a separate agreement or order.
4

1

4.

DURATION

2

Even after final disposition of this litigation, the confidentiality obligations

3

imposed by this Order shall remain in effect until a Designating Party agrees

4

otherwise in writing or a court order otherwise directs. Final disposition shall be

5

deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

6

without prejudice; and (2) final judgment herein after the completion and exhaustion

7

or all appeals, rehearings, remands, trials, or reviews of this action, including the time

8

limits for filing any motions or applications for extension of time pursuant to

9

applicable law.

10
11

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

12

Each Party or Non-Party that designates information or items for protection under this

13

Order must take care to limit any such designation to specific material that qualifies

14

under the appropriate standards. The Designating Party must designate for protection

15

only those parts of materials, documents, items, or oral or written communications

16

that qualify, so that other portions of the materials, documents, items, or

17

communications for which protection is not warranted are not swept unjustifiably

18

within the ambit of this Order.

19

Mass, indiscriminate, or routinized designations are prohibited. Designations

20

that are shown to be clearly unjustified or that have been made for an improper

21

purpose (e.g., to unnecessarily encumber or retard the case development process or to

22

impose unnecessary expenses and burdens on other parties) expose the Designating

23

Party to sanctions.

24

If it comes to a Designating Party’s attention that information or items that it

25

designated for protection do not qualify for protection that Designating Party must

26

promptly notify all other Parties that it is withdrawing the mistaken designation.

27
28

5.2

Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or otherwise
5

1

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

2

under this Order must be clearly so designated before the material is disclosed or

3

produced.

4

Designation in conformity with this Order requires:

5

(a) for information in documentary form (e.g., paper or electronic

6

documents, but excluding transcripts of depositions or other pretrial proceedings), that

7

the Producing Party affix the legend “CONFIDENTIAL” to each page that contains

8

protected material.

9

A Party or Non-Party that makes original documents or materials available for

10

inspection need not designate them for protection until after the inspecting Party has

11

indicated which material it would like copied and produced. During the inspection and

12

before the designation, all materials made available for inspection shall be deemed

13

“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

14

copied and produced, the Producing Party must determine which documents, or

15

portions thereof, qualify for protection under this Order. Then, before producing the

16

specified documents, the Producing Party must affix the “CONFIDENTIAL” legend

17

to each page that contains Protected Material.

18

(b) for testimony given in deposition or in other pretrial or trial

19

proceedings, that the Designating Party identify on the Record, before the close of the

20

deposition, hearing, or other proceeding, all protected testimony.

21

(c) for information produced in some form other than documentary and

22

for other tangible items, that the Producing Party affix in a prominent place on the

23

exterior of the container or containers in which the information or item is stored the

24

legend “CONFIDENTIAL.” If only a portion or portions of the information or item

25

warrant protection, the Producing Party shall identify the Protected Portion(s) to the

26

extent practical.

27

5.3

28

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive the
6

1

Designating Party’s right to secure protection under this Order for such material.

2

Upon timely correction of the designation, the Receiving Party must make reasonable

3

efforts to assure that the material is treated in accordance with the provisions of this

4

Order.

5

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

6

Timing of Challenges.

Any Party or Non-Party may challenge a

7

designation of confidentiality at any time. Unless a prompt challenge to a Designating

8

Party’s confidentiality designation is necessary to avoid foreseeable, substantial

9

unfairness, unnecessary economic burdens, or a significant disruption or delay of the

10

litigation, a Party does not waive its right to challenge a confidentiality designation by

11

electing not to mount a challenge promptly after the original designation is disclosed.
6.2

12
13

The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-2.
6.3

14
15

Meet and Confer.

Judicial Intervention. Any challenge submitted to the Court shall be via a

joint stipulation pursuant to Local Rule 37-2.

16

The burden of persuasion in any such challenge proceeding shall be on the

17

Designating Party. Frivolous challenges, and those made for improper purpose (e.g.,

18

to harass or impose unnecessary expenses and burdens on other parties) may expose

19

the Challenging Party to sanctions. Unless the Designating Party has waived or

20

withdrawn the confidentiality designation, all parties shall continue to afford the

21

materials in question the level of protection to which it is entitled under the Producing

22

Party’s designation until the court rules on the challenge.

23

7.

24

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

25

disclosed or produced by another Party or by a Non-Party in connection with this case

26

only for prosecuting, defending, or attempting to settle this litigation. Such Protected

27

Material may be disclosed only to the categories of persons and under the conditions

28
7

1

described in this Order. When the litigation has been terminated, a Receiving Party

2

must comply with the provisions of section 13 below.

3

Protected Material must be stored and maintained by a Receiving Party at a

4

location and in a secure manner that ensures that access is limited to the persons

5

authorized under this Order.

6

7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

7

otherwise ordered by the court or permitted in writing by the Designating Party, a

8

Receiving Party may disclose any information or item designated “CONFIDENTIAL”

9

only to:

10

(a) the Receiving Party’s Outside Counsel of Record to this action, as

11

well as employees of said Outside Counsel of Record to whom it is reasonably

12

necessary to disclose the information for this litigation and who have signed the

13

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;

14

(b) the officers, directors, and employees (including In-House Counsel)

15

of the Receiving Party to whom disclosure is reasonably necessary for this litigation

16

and who have signed the “Acknowledgment and Agreement to Be Bound”

17

(Exhibit A);

18

(c) Experts (as defined in this Order) of the Receiving Party to whom

19

disclosure is reasonably necessary for this litigation and who have signed the

20

“Acknowledgement and Agreement to Be Bound” (Exhibit A);

21

(d) the court and its personnel;

22

(e) court reporters and their staff, professional jury or trial consultants,

23

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary

24

for this litigation and who have signed the “Acknowledgment and Agreement to Be

25

Bound” (Exhibit A);

26

(f) during their depositions, witnesses in this action to whom disclosure is

27

reasonably necessary and who have signed the “Acknowledgment and Agreement to

28

Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
8

1

by the court. Pages of transcribed deposition testimony or exhibits to depositions that

2

reveal Protected Material must be separately bound by the court reporter and may not

3

be disclosed to anyone except as permitted under this Stipulated Protective Order;
(g) the author or recipient of a document containing the information or a

4
5

custodian or other person who otherwise possessed or knew the information; and
(h) any mediator or settlement officer, and their supporting personnel,

6
7
8
9

mutually agreed upon by any of the parties engaged in settlement discussions.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

10

If a Party is served with a subpoena or a court order issued in other litigation

11

that compels disclosure of any information or items designated in this action as

12

“CONFIDENTIAL,” that Party must:

13
14

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

15

(b) promptly notify in writing the party who caused the subpoena or order

16

to issue in the other litigation that some or all of the material covered by the subpoena

17

or order is subject to this Protective Order. Such notification shall include a copy of

18

this Stipulated Protective Order; and

19
20

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

21

If the Designating Party timely seeks a protective order, the Party served with

22

the subpoena or court order shall not produce any information designated in this

23

action as “CONFIDENTIAL” before a determination by the court from which the

24

subpoena or order issued, unless the Party has obtained the Designating Party’s

25

express, written permission. The Designating Party shall bear the burden and expense

26

of seeking protection in that court of its confidential material – and nothing in these

27

provisions should be construed as authorizing or encouraging a Receiving Party in this

28

action to disobey a lawful directive from another court.
9

1

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

2
3

(a) The terms of this Order are applicable to information produced by a

4

Non-Party in this action and designated as “CONFIDENTIAL.” Such information

5

produced by Non-Parties in connection with this litigation is protected by the

6

remedies and relief provided by this Order. Nothing in these provisions should be

7

construed as prohibiting a Non-Party from seeking additional protections.

8

(b) In the event that a Party is required, by a valid discovery request, to

9

produce a Non-Party’s confidential information in its possession, and the party is

10

subject to an agreement with the Non-Party not to produce the Non-Party’s

11

confidential information, then the Party shall:

12

(1) promptly notify in writing the Requesting Party and the Non-

13

Party that some or all of the information requested is subject to a confidentiality

14

agreement with a Non-Party;

15

(2) promptly provide the Non-Party with a copy of the Stipulated

16

Protective Order in this litigation, the relevant discovery request(s), and a reasonably

17

specific description of the information requested; and
(3) make the information requested available for inspection by the

18
19

Non-Party.

20

(c) If the Non-Party fails to object or seek a protective order from this

21

court within 14 days of receiving the notice and accompanying information, the

22

Receiving Party may produce the Non-Party’s confidential information responsive to

23

the discovery request. If the Non-Party timely seeks a protective order, the Receiving

24

Party shall not produce any information in its possession or control that is subject to

25

the confidentiality agreement with the Non-Party before a determination by the court.

26

Absent a court order to the contrary, the Non-Party shall bear the burden and expense

27

of seeking protection in this court of its Protected Material.

28

///
10

1

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

3

Protected Material to any person or in any circumstance not authorized under this

4

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

5

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

6

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

7

persons to whom unauthorized disclosures were made of all the terms of this Order,

8

and (d) request such person or persons to execute the “Acknowledgment and

9

Agreement to Be Bound” that is attached hereto as Exhibit A.

10

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11

PROTECTED MATERIAL

12

When a Producing Party gives notice to Receiving Parties that certain

13

inadvertently produced material is subject to a claim of privilege or other protection,

14

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

15

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

16

may be established in an e-discovery order that provides for production without prior

17

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

18

parties reach an agreement on the effect of disclosure of a communication or

19

information covered by the attorney-client privilege or work product protection, the

20

parties may incorporate their agreement in the stipulated protective order submitted to

21

the court.

22

12.

23
24

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.

25

12.2 Right to Assert Other Objections. By stipulating to the entry of this

26

Protective Order, no Party waives any right it otherwise would have to object to

27

disclosing or producing any information or item on any ground not addressed in this

28
11

1

Stipulated Protective Order. Similarly, no Party waives any right to object on any

2

ground the use in evidence of any of the material covered by this Protective Order.

3

12.3 Filing Protected Material. If a Receiving Party wishes to file Protected

4

Material with the Court, the Receiving Party must give any Designating Party five

5

calendar days’ notice of intent to file.

6

Designating Party shall notify the Receiving Party and file an application to file

7

documents under seal within two (2) court days. An application to file documents

8

under seal must meet the requirements of Local Rule 79-5. If the Court grants an

9

application to file documents under seal, the Court’s mandatory chambers copies must

10

include a complete version of the documents with an appropriate notation identifying

11

the document or the portion of the document that has been filed under seal. If a

12

Designating Party fails to timely file an application to file the Protected Material

13

under seal or the request to file Protected Material under seal is denied by the court,

14

then the Receiving Party may file the information in the public record unless

15

otherwise instructed by the court.

16

13.

If the Designating Party objects, the

FINAL DISPOSITION

17

Within 60 days after the final disposition of this action, as defined in Section 4,

18

each Receiving Party must return all Protected Material to the Producing Party or

19

destroy such material. As used in this subdivision, “all Protected Material” includes

20

all copies, abstracts, compilations, summaries, and any other format reproducing or

21

capturing any of the Protected Material. Whether the Protected Material is returned or

22

destroyed, the Receiving Party must submit a written certification to the Producing

23

Party (and, if not the same person or entity, to the Designating Party) by the 60 day

24

deadline that (a) identifies (by category, where appropriate) all of the Protected

25

Material that was returned or destroyed and (2) affirms that the Receiving Party has

26

not retained any copies, abstracts, compilations, summaries, or any other format

27

reproducing or capturing any of the Protected Material. Notwithstanding this

28

provision, Counsel are entitled to retain an archival copy of all pleadings, motion
12

1

papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

2

deposition and trial exhibits, expert reports, attorney work product, and consultant and

3

expert work product, even if such materials contain Protected Material. Any such

4

archival copies that contain or constitute Protected Material remain subject to this

5

Protective Order as set forth in Section 4.

6

IT IS SO ORDERED.

7
8
9

Dated: April 13, 2018

/s/ Frederick F. Mumm
Frederick F. Mumm
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2

I,

3

[print or type full address], declare under penalty of perjury that I

4
5
6
7
8
9
10
11
12
13

have read in its entirety and understand the Stipulated Protective Order that was
issued by the United States Court for the Central District of California on [date] in
the case of Paul Jackley v. General Motors Corporation, Case No. 8:17-cv-02085JVS-FFM. I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise
that I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with
the provision of this Order.
I further agree to submit to the jurisdiction of the United States District Court

14
15
16
17

for the Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
I hereby appoint

18

21

[print or type full name] of
[print or type full address and telephone number] as my

19
20

[print or type full name], of

California agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.

22
23
24
25
26

Date:
City and State where sworn and signed:
Printed name:
Signature:

27
28
14