Borboa v. Marketstar Corporation

Filing 12

Stipulated PROTECTIVE ORDER signed by Magistrate Judge Gary S. Austin on 10/9/2013. (Martinez, A)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Eric P. Oren, #106129 LAW OFFICES OF ERIC P. OREN, INC. 225 West Shaw Avenue, Suite 105 Fresno, California 93704 Telephone: 559.224.5900 Facsimile: 559.224.5905 Attorneys for Plaintiff CHRISTIANA BORBOA Jason S. Mills Rebecca Licht Jensen MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue, Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: 213.612.2500 Fax: 213.612.2501 Maureen McLoughlin, pro hac vice DAVIS & GILBERT LLP 1740 Broadway New York, New York 10019 Tel: 212.468.4800 Fax: 212.468.4888 Attorneys for CORPORATION Defendant 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 16 17 18 CHRISTIANA BORBOA, an individual residing Case No.:1:13−CV−01249−AWI−GSA in California, Plaintiff, 19 20 21 22 23 24 25 26 27 28 MARKETSTAR vs. MARKETSTAR CORPORATION, and Does 1 through 50, inclusive, Defendants. STIPULATED PROTECTIVE ORDER 1 1. Disclosure and discovery activity in this action are likely to involve production of 2 3 4 5 6 7 8 9 10 11 12 13 14 confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; the Eastern District of California’s Local Rules, including Local Rule 141 set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 15 16 PURPOSES AND LIMITATIONS Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 17 “CONFIDENTIAL” Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 2.3 21 22 23 24 Counsel (without qualifier): Outside Counsel of Record (as well as their support 2.4 20 Designating Party: a Party or Non-Party that designates information or items that staff). it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the 25 medium or manner in which it is generated, stored, or maintained (including, among other things, 26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 27 responses to discovery in this matter. 28 2 1 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 2 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action. 4 5 2.7 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.8 Outside Counsel of Record: attorneys who are not employees of a party to this 7 action but are retained to represent or advise a party to this action and have appeared in this action 8 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 9 10 2.9 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 11 12 Party: any party to this action, including all of its officers, directors, employees, 2.10 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 13 2.11 Professional Vendors: persons or entities that provide litigation support services 14 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 15 organizing, storing, or retrieving data in any form or medium) and their employees and 16 subcontractors. 17 18 2.12 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 19 2.13 Receiving Party: a Party that receives Disclosure or Discovery Material from a 20 Producing Party. 21 3. SCOPE 22 The protections conferred by this Stipulation and Order cover not only Protected Material 23 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 24 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 25 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 26 However, the protections conferred by this Stipulation and Order do not cover the following 27 information: (a) any information that is in the public domain at the time of disclosure to a 28 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 3 1 a result of publication not involving a violation of this Order, including becoming part of the 2 public record through trial or otherwise; and (b) any information known to the Receiving Party 3 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 4 obtained the information lawfully and under no obligation of confidentiality to the Designating 5 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 6 4. DURATION 7 Even after final disposition of this litigation, the confidentiality obligations imposed by 8 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 9 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 10 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 11 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 12 including the time limits for filing any motions or applications for extension of time pursuant to 13 applicable law. 14 15 16 17 18 19 20 21 22 23 24 25 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. 26 27 28 4 1 If it comes to a Designating Party’s attention that information or items that it designated 2 for protection do not qualify for protection, the Designating Party must promptly notify all other 3 Parties that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 5 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 6 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 7 designated before the material is disclosed or produced. 8 Designation in conformity with this Order requires: 9 (a) For information in documentary form (e.g., paper or electronic documents, but 10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 11 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only 12 a portion or portions of the material on a page qualifies for protection, the Producing Party also 13 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15 A Party or Non-Party that makes original documents or materials available for inspection 16 need not designate them for protection until after the inspecting Party has indicated which 17 material it would like copied and produced. During the inspection and before the designation, all 18 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 19 inspecting Party has identified the documents it wants copied and produced, the Producing Party 20 must determine which documents, or portions thereof, qualify for protection under this Order. 21 Then, before producing the specified documents, the Producing Party must affix the 22 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 23 portions of the material on a page qualifies for protection, the Producing Party also must clearly 24 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 25 (b) For testimony given in deposition or in other pretrial or trial proceedings, that 26 the Designating Party identify on the record, before the close of the deposition, hearing, or other 27 proceeding, all protected testimony. 28 (c) For information produced in some form other than documentary and for any 5 1 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 2 container or containers in which the information or item is stored the legend “CONFIDENTIAL.” 3 If only a portion or portions of the information or item warrant protection, the Producing Party, to 4 the extent practicable, shall identify the protected portion(s). 5 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 6 designate qualified information or items does not, standing alone, waive the Designating Party’s 7 right to secure protection under this Order for such material. Upon timely correction of a 8 designation, the Receiving Party must make reasonable efforts to assure that the material is 9 treated in accordance with the provisions of this Order. 10 11 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 12 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 13 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 14 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 15 challenge a confidentiality designation by electing not to mount a challenge promptly after the 16 original designation is disclosed. 17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 18 process by providing written notice of each designation it is challenging and describing the basis 19 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 20 notice must recite that the challenge to confidentiality is being made in accordance with this 21 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 22 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 23 forms of communication are not sufficient) within 14 days of the date of service of notice. In 24 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 25 designation was not proper and must give the Designating Party an opportunity to review the 26 designated material, to reconsider the circumstances, and, if no change in designation is offered, 27 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 28 6 1 stage of the challenge process only if it has engaged in this meet and confer process first or 2 establishes that the Designating Party is unwilling to participate in the meet and confer process in 3 a timely manner. 4 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 5 intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21 6 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 7 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 8 accompanied by a competent declaration affirming that the movant has complied with the meet 9 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 10 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 11 shall automatically waive the confidentiality designation for each challenged designation. In 12 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 13 time if there is good cause for doing so, including a challenge to the designation of a deposition 14 transcript or any portions thereof. Any motion brought pursuant to this provision must be 15 accompanied by a competent declaration affirming that the movant has complied with the meet 16 and confer requirements imposed by the preceding paragraph. 17 The burden of persuasion in any such challenge proceeding shall be on the Designating 18 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 19 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 20 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 21 file a motion to retain confidentiality as described above, all parties shall continue to afford the 22 material in question the level of protection to which it is entitled under the Producing Party’s 23 designation until the court rules on the challenge. 24 25 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 26 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 27 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 28 7 1 to the categories of persons and under the conditions described in this Order. When the litigation 2 has been terminated, a Receiving Party must comply with the provisions of section 13 below 3 (FINAL DISPOSITION). 4 5 6 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 7 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 8 disclose any information or item designated “CONFIDENTIAL” only to: 9 (a) The Receiving Party’s Outside Counsel of Record in this action, as well as 10 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 11 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 12 Bound” that is attached hereto as Exhibit A; 13 (b) The officers, directors, and employees of the Receiving Party to whom 14 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 15 and Agreement to Be Bound” (Exhibit A); 16 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 17 reasonably necessary for this litigation and who have signed the “Acknowledgment and 18 Agreement to Be Bound” (Exhibit A); 19 (d) The court and its personnel; 20 (e) Court reporters and their staff, professional jury or trial consultants, mock 21 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 22 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 (f) During their depositions, witnesses in the action to whom disclosure is 24 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 25 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 26 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 27 separately bound by the court reporter and may not be disclosed to anyone except as permitted 28 under this Stipulated Protective Order; and 8 1 2 3 (g) The author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 8. 4 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 5 If a Party is served with a subpoena or a court order issued in other litigation that compels 6 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 7 must: 8 9 (a) Promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 10 (b) Promptly notify in writing the party who caused the subpoena or order to issue 11 in the other litigation that some or all of the material covered by the subpoena or order is subject 12 to this Protective Order. Such notification shall include a copy of this Stipulated Protective 13 Order; and 14 15 (c) Cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party served with the 17 subpoena or court order shall not produce any information designated in this action as 18 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 19 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 20 shall bear the burden and expense of seeking protection in that court of its confidential material – 21 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 22 Party in this action to disobey a lawful directive from another court. 23 9. 24 25 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- 26 Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non- 27 Parties in connection with this litigation is protected by the remedies and relief provided by this 28 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 9 1 additional protections. 2 (b) In the event that a Party is required, by a valid discovery request, to 3 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 4 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 5 Party shall: 6 (1) Promptly notify in writing the Requesting Party and the Non-Party 7 that some or all of the information requested is subject to a confidentiality agreement with a Non- 8 Party; 9 (2) Promptly provide the Non-Party with a copy of the Stipulated 10 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 11 description of the information requested; and 12 13 (3) Make the information requested available for inspection by the Non-Party. 14 (c) If the Non-Party fails to object or seek a protective order from this court 15 within 14 days of receiving the notice and accompanying information, the Receiving Party may 16 produce the Non-Party’s confidential information responsive to the discovery request. If the 17 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 18 in its possession or control that is subject to the confidentiality agreement with the Non-Party 19 before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall 20 bear the burden and expense of seeking protection in this court of its Protected Material. 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 23 Material to any person or in any circumstance not authorized under this Stipulated Protective 24 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 25 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 26 27 28 1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 10 1 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 2 made of all the terms of this Order, and (d) request such person or persons to execute the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 4 11. 5 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 6 When a Producing Party gives notice to Receiving Parties that certain inadvertently 7 produced material is subject to a claim of privilege or other protection, the obligations of the 8 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 9 provision is not intended to modify whatever procedure may be established in an e-discovery 10 order that provides for production without prior privilege review. Pursuant to Federal Rule of 11 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 12 communication or information covered by the attorney-client privilege or work product 13 protection, the parties may incorporate their agreement in the stipulated protective order 14 submitted to the court. 15 12. 12.1 16 17 MISCELLANEOUS Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 18 Right to Assert Other Objections. By stipulating to the entry of this Protective 19 Order no Party waives any right it otherwise would have to object to disclosing or producing any 20 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 21 no Party waives any right to object on any ground to use in evidence of any of the material 22 covered by this Protective Order. 12.3 23 Filing Protected Material. Without written permission from the Designating Party 24 or a court order secured after appropriate notice to all interested persons, a Party may not file in 25 the public record in this action any Protected Material. A Party that seeks to file under seal any 26 Protected Material must comply with the Eastern District of California’s Local Rules. 27 /// 28 /// 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 13. FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (2)affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Respectfully submitted, Respectfully submitted, ________________________________ Eric P. Oren, LAW OFFICES OF ERIC P OREN Attorney for Plaintiff Christiana Borboa ________________________________ Jason S. Mills Rebecca Licht Jensen MORGAN LEWIS & BOCKIUS LLP 19 20 21 22 23 24 Maureen McLoughlin DAVIS & GILBERT LLP Attorneys for Corporation 25 26 27 28 12 Defendant Marketstar 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that I have read 5 in its entirety and understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Eastern District of California on [date] in the case of Borboa v. Marketstar 7 Corporation, Case No. 1:13-CV-01249 (AWI) (GSA). I agree to comply with and to be bound by 8 all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to 9 so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 10 promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 12 of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Eastern District of California for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone 18 number] as my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 24 25 26 Printed name: ______________________________ [printed name] Signature: __________________________________ [signature] 27 /// 28 /// 13 1 ORDER 2 3 The Court adopts the parties’ stipulated protective order as set forth above and filed as Doc. 10 on the Court’s docket (signed copy). 4 5 6 IT IS SO ORDERED. 7 8 9 Dated: October 9, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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