Patterson v. Morgan Stanley Smith Barney, LLC

Filing 22

STIPULATION and ORDER Re: Use of Private and Confidential Information, signed by Magistrate Judge Sandra M. Snyder on 9/22/2011. (Herman, H)

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TRISH M. HIGGINS (STATE BAR NO. 119215)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814-4497
Telephone:
[phone]
Facsimile:
[phone]
SITTHIKIT CHARIYASATIT (STATE BAR NO. 252028)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
MORGAN STANLEY SMITH BARNEY LLC
PETER SEAN BRADLEY, ESQ. (STATE BAR NO. 109258)
PENNER, BRADLEY & SIMONIAN
1171 West Shaw Avenue, Suite 102
Fresno, CA 93711
Telephone: [phone]
Facsimile:
[phone]
Attorney for Plaintiff
CLARENCE REITH PATTERSON, JR.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

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CLARENCE REITH PATTERSON, JR.,

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Case No. 1:10-cv-02084-LJO-SMS

Plaintiff,

STIPULATION AND ORDER RE:
USE OF PRIVATE AND
CONFIDENTIAL INFORMATION

v.
Morgan Stanley Smith Barney, LLC
and Does 1 through 10, inclusive,
Defendants.

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-1C:\Users\lz9\Desktop\Patterson - Stipulation and Proposed
Protective Order re Use of Confidential Information.doc

STIPULATION RE USE OF PRIVATE AND
CONFIDENTIAL INFORMATION
(1:10-CV-02084-LJO-SMS)

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Plaintiff Clarence Reith Patterson, Jr. and Defendant Morgan Stanley Smith

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Barney, LLC (collectively the “Stipulating Parties”), through their respective counsel of record,

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stipulate as follows:

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The preparation and trial of this action may require the discovery or

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disclosure of documents, information or other material claimed by one or more of the parties to

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this action or others to be confidential.

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2.

In order to expedite the flow of discovery materials, facilitate the prompt

resolution of disputes over confidentiality, adequately protect material entitled to be kept

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confidential, and serve the ends of justice, a protective order for such information is prudent and

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necessary.

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3.

Any Stipulating Party may designate as “Confidential” any documents or

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other information that contains “Confidential Information,” as that term is defined in Paragraph 4

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below, that a Stipulating Party has kept secret or confidential and which, if disclosed, could place

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a Stipulating Party at a competitive disadvantage in the marketplace or cause disclosure of

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information protected by the right to privacy. Documents, depositions, and interrogatory

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responses or other papers shall be designated confidential by stamping the word “Confidential”

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on each page of the document containing confidential information or by a Stipulating Party

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advising the other Stipulating Party in writing that such documents are deemed to be confidential.

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4.

“Confidential Information” includes documents or other information

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constituting trade secrets, proprietary or other confidential commercial information that belongs

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to a Stipulating Party and which if disclosed could place the Stipulating Party at a competitive

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disadvantage in the marketplace or cause disclosure of information protected by the right to

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privacy, including the following specific categories of documents: (1) documents that reveal

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confidential employee information such as name, address, telephone number, or other personal

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information; (2) documents that reveal financial or other commercial terms of private agreements

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not available to the public; (3) and documents that reveal confidential financial or commercial

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information regarding a Stipulating Party’s business that is not available to the public or a

-2C:\Users\lz9\Desktop\Patterson - Stipulation and Proposed
Protective Order re Use of Confidential Information.doc

STIPULATION RE USE OF PRIVATE AND
CONFIDENTIAL INFORMATION
(1:10-CV-02084-LJO-SMS)

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Stipulating Party’s competitors, and which if disclosed could place a Stipulating Party at a

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competitive disadvantage in the marketplace or cause disclosure of information protected by the

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right to privacy. Execution of this protective order shall not waive any right otherwise available

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to the Stipulating Parties to object to the production of any such requested information on

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privacy, trade secret, confidentiality, attorney-client privilege, attorney work product, relevancy

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or other grounds when the parties deem such an objection to be necessary or appropriate.

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5.

Neither the provisions of this Stipulated Protective Order, nor any

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designation or failure to designate any particular information, document or material by a party as

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Confidential Information shall, in this litigation or any other litigation, constitute a waiver of the

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rights of a party to assert confidentiality with respect to any document, material or information

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meeting the definition of Confidential Information in Paragraph 4 above. Upon discovery of an

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inadvertent or otherwise non-designation, the discovering party will immediately notify the

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opposing party and the information, document or material identified will be henceforth treated as

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if it had been originally designated as Confidential Information and will be subject to the terms of

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this Stipulated Protective Order.

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6.

All Confidential Information provided by the parties pursuant to discovery

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or otherwise obtained in the course of this litigation shall be treated as confidential and shall not

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be disseminated to any person not directly connected with this specific litigation. Specifically, all

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Confidential Information listed in Paragraph 4 that is obtained through discovery or otherwise
-3from the parties in this case shall not be disclosed to anyone other than:
(a)

retained and corporate attorneys for any Stipulating Party who are

engaged in litigating this action and the employees of such attorneys;
(b)

persons not employees of any Stipulating Party who serve as

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experts or consultants (“outside experts”) to assist such Stipulating Party’s counsel in the

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preparation of this action for trial, including, but not limited to auditors, accountants, statisticians,

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economists, attorneys and other experts, and the employees of such persons;

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(c)

a Stipulating Party, or principals, officers, employees, agents or

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representatives of any Stipulating Party, whose assistance or consultation is required by counsel

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in connection with the prosecution or defense of this action;

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(d)

potential witnesses in connection with this litigation;

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(e)

any mediator hired by the parties to assist in resolving this case.

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7.

No person shall make any disclosure of Confidential Information to any

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person falling within categories (b), (c) or (d) in Paragraph 6 without first obtaining from any

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such person a signed statement in the form attached hereto as “Exhibit A”. Either party may

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request of the other a copy (if any) of said signed statement(s) to counsel. The other party must

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promptly comply with such a request by providing copies of the signed statement(s) by facsimile

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or email or other appropriate means, and in no event beyond five (5) business days of such a

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request. If a party objects to the disclosure of information to a particular person, the Stipulating

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Party objecting to such disclosure shall have five (5) days to seek a protective order from the

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Court barring such disclosure and no such disclosure shall be made until further order of the

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Court.

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8.

No disclosure of Confidential Information shall be made except in

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accordance with this Stipulation and Protective Order, and no use shall be made of any

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Confidential Information except in accordance with this Stipulation and Protective Order.

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9.

This order shall in no way impair the right of any party to raise or assert a

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defense or objection, including but not limited to defenses or objections to the production of
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any evidence, whether or not comprised of documents or information governed by this order.

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10.

All attempts to use any Confidential Material in connection with any

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pleading, motion or as evidence shall be governed by the procedures set forth in Local Civil Rule

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39-141. The Court’s refusal to order certain documents sealed does not impact or abrogate any

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party’s designation of those documents as Confidential Information.

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11.

Nothing in this order shall preclude any party from using Confidential

Information at the trial of this litigation; provided, however, that prior to using such material the

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party offering it advises the Court and all other parties so that steps can be taken to ensure the

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preservation of the confidential nature of the information to be used, if deemed necessary and

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appropriate by the Court.

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12.

Should any Stipulating Party object to the Confidential treatment of any

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information designated Confidential under the terms hereof, such Stipulating Party shall, after

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meeting and conferring in good faith with the designating party, move the Court for an order

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releasing the material from the designation as Confidential.

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13.

Nothing contained herein shall restrict in any way the rights of any

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Stipulating Party producing Confidential Information to release that information or otherwise

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make it non-Confidential.

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14.

Upon conclusion of the litigation, a party in the possession of original or

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copies of Confidential Information of another party, other than that which is contained in

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pleadings, correspondence, and deposition transcripts, shall either (a) return such documents no

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later than thirty (30) days after conclusion of this action to counsel for the party to whom the

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information belongs, or (b) destroy such documents within that time period, and certify in writing

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within thirty (30) days that the documents have been destroyed. All provisions of this Order

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restricting the communication or use of Confidential Information shall continue to be binding

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after the conclusion of this action, unless otherwise agreed or ordered. Notes, summaries and

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other documents protected by the work product doctrine shall remain subject to this Stipulation
-5and Protective Order.
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This Stipulation and Protective Order shall not limit the right of any party

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to apply for further protective orders as modifications or extensions of this order, and shall not

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restrict the use by any party of its own information.

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Once protections in this Stipulation and Protective Order have attached to a

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document, statement or item of information hereafter communicated, such protections shall not be

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reduced or waived by further communicating, restating, summarizing, discussing or referring to

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any such documents, statements or information.

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The Court and its personnel shall not be bound by the terms of this

Protective Order.

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Dated: September 19, 2011

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TRISH M. HIGGINS
SITTHIKIT CHARIYASATIT
ORRICK, HERRINGTON & SUTCLIFFE LLP

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/s/ Sitthikit Chariyasatit
SITTHIKIT CHARIYASATIT
Attorneys for Defendant
MORGAN STANLEY SMITH BARNEY LLC

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Dated: September 19, 2011

PETER SEAN BRADLEY
PENNER, BRADLEY & SIMONIAN

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/s/ Peter Sean Bradley
PETER SEAN BRADLEY
Attorney for Plaintiff
CLARENCE REITH PATTERSON, JR.
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EXHIBIT A

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION

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CLARENCE REITH PATTERSON, JR.,

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Plaintiff,
v.

Case No. 1:10-cv-02084-LJO-SMS
CERTIFICATION RE: USE OF
PRIVATE AND CONFIDENTIAL
INFORMATION

Morgan Stanley Smith Barney, LLC
and Does 1 through 10, inclusive,
Defendants.

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I, _____________________________________, declare under penalty of perjury

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under the laws of the United States that I have read in its entirety and understand the attached

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Protective Order re: Private and Confidential Information (the “Protective Order”) in the matter of

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Patterson v. Morgan Stanley Smith Barney, LLC, -United States District Court, Eastern District of
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California, Case No. 1:10-cv-02084-LJO-SMS. I hereby agree to fully comply with the terms and

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conditions thereof. I also hereby consent to be subject to the jurisdiction of the above-captioned

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court with respect to any proceedings relating to enforcement of the Protective Order.

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Executed this ____ day of ___________ 201__, at _________________________.

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__________________________________________
(Signature)

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ORDER

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PURSUANT TO STIPULATION,

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IT IS SO ORDERED.
Dated:

September 22, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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