Becky Greer et al v. Pacific Gas and Electric Company

Filing 76

Stipulation for Protective Order and Order thereon [Fed. R. Civ. P. 26(c)], signed by Magistrate Judge Erica P. Grosjean on 8/17/2016. (Rosales, O)

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WANGER JONES HELSLEY PC
265 E. River Park Circle, Suite 310
Fresno, California 93720
Telephone: [phone]
Facsimile: [phone]
Patrick D. Toole #19011
Dylan J. Crosby #299536
Erin T. Huntington #306037
LITTLER MENDELSON, P.C.
Joshua D. Kienitz #244903
Aurelio J. Perez #282135
650 California Street, 20th Floor
San Francisco, California 94108-2693
Telephone: [phone]
Facsimile: 415.399.8490

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LEONARD CARDER, LLP
Philip Monrad #151073
1330 Broadway, Suite 1450
Oakland, CA 94612
Telephone: [phone]
Fax: [phone]
IBEW LOCAL UNION 1245
Alex Pacheco #302852
30 Orange Tree Circle
Vacaville, CA 95687
Telephone: [phone]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BECKY GREER; TIMOTHY C. BUDNIK;
ROSARIO SAENZ; and IAN CARTY,
Individually and as “Class Representatives,”

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Plaintiffs,
v.
PACIFIC GAS AND ELECTRIC
COMPANY, and DOES 1 through 10,
inclusive,

Case No. 1:15-CV-01066—EPG
CLASS ACTION
STIPULATION FOR
PROTECTIVE ORDER AND
ORDER THEREON
[Fed. R. Civ. P. 26(c)]
Hon. Erica P Grosjean
Complaint filed: July 10, 2015

Defendants.

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STIPULATION FOR PROTECTIVE ORDER AND ORDER THEREON

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Through their respective attorneys of record, pursuant to Rule 26(c) of the

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Federal Rules of Civil Procedure and Local Rule 141.1, Plaintiffs Becky Greer, Timothy C.

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Budnik, Rosario Saenz, Ian Carty and Haley Markwith (collectively “Plaintiffs”) and

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Defendants Pacific Gas and Electric Company (“PG&E”) and IBEW Local 1245 (the “IBEW”)

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hereby stipulate to the following protective order for the purpose of preventing unnecessary

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disclosure or inappropriate use of confidential, private, proprietary and/or trade secret business

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information contained in certain documents, deposition testimony or discovery responses

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provided during the course of the above entitled lawsuit (the “Action”).

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IBEW seeks by this Protective Order to prevent disclosure of: 1) the names,

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contact information, and employment status or history, personnel file and/or Union affiliation,

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of PG&E employees within the bargaining units represented by IBEW who are not parties to

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this action; 2) confidential internal union communications and/or documents, including but not

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limited to grievance files and negotiating notes, disclosure of which could jeopardize IBEW’s

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ability to negotiate on a level playing field with signatory employers.

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PG&E concurs with the IBEW’s and Plaintiffs’ desire for a protective order and

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further seeks by this Protective Order to prevent disclosure of: 1) the names, contact

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information, and employment status or history, personnel file, confidential information, and/or

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Union affiliation, of PG&E employees within the bargaining units represented by IBEW who

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are not parties to this action; 2) confidential internal PG&E communications and/or documents,

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including but not limited to grievance files and negotiating notes.

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Protection of this information should be addressed by a court order as opposed

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to private agreement, because the imprimatur of a court order will enhance the effectiveness of

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the protections set out below.

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agreement, as provided below, will enable the parties to remedy any breach of or disputes

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regarding this order, as opposed to the more cumbersome and uncertain procedures for

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enforcing a private agreement.

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1.

Also, the court’s continuing jurisdiction to enforce this

Accordingly, the Parties stipulate to entry of a Protective Order, as set out

below: During this Action, one or more parties may produce certain documents, provide
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written discovery responses and/or provide or elicit deposition testimony containing

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confidential, private, proprietary and/or trade secret business information.

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2.

The protections conferred by this Protective Order cover not only all items or

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information, regardless of the medium or manner in which it is generated, stored, or maintained

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

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or generated in disclosures or responses to discovery in this matter that has been designated as

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“Confidential” and subject to this Protective Order (i.e., “Protected Material”), but also (1) any

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

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

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Parties or their Counsel that might reveal Protected Material.
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Documents produced by a person, entity, party, or counsel may stamp or

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otherwise label that document with the words “Confidential – Subject to Protective Order”

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prior to production, which shall render that document and the information contained in it

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subject to this Protective Order. Stamping or otherwise marking “Confidential – Subject to

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Protective Order” on the first page of any multi-page document shall designate all pages of the

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document as confidential and subject to this Order, unless otherwise expressly indicated by the

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party producing that document. To the extent practicable, only confidential information should

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be designated accordingly. For example, a single, confidential word or sentence does not

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render an entire page confidential.

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4.

A party that makes original documents or materials available for inspection

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need not designate them for protection until after the inspecting party has indicated which

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material it would like copied and produced. During the inspection and before the designation,

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all of the material made available for inspection shall be deemed strictly confidential and

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subject to this Order. After the inspecting party has identified the documents it wants copied

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and produced, the producing party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified documents, the

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producing party must affix the “Confidential – Subject to Protective Order” legend to each

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page that contains Protected Material.
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5.

For information produced in some form other than documentary and for any

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other tangible items, the producing party shall affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend “Confidential –

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Subject to Protective Order.”

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6.

With respect to written discovery responses provided by a party, either that

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party or its counsel may designate a particular response (or portion of a response) as containing

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confidential information by stamping or otherwise marking the word “Confidential – Subject to

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Protective Order” on the page or pages containing that discovery response or by explicitly

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stating within the response itself that the information contained therein is confidential and

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subject to a protective order, either of which designation shall render that response and the

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information contained in it subject to this Protective Order.

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designation is intended to be limited and cover only “Confidential” information as detailed in

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paragraph 3, above.

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7.

Again, the confidentiality

Except as noted below, the original and all attorneys’ copies of deposition

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transcripts shall initially be considered not to contain confidential information and shall only be

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subject to the relevant provisions of this Order if the requesting attorney for a party at the

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deposition on the record designates portions of the testimony confidential, or within ten (10)

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days after receipt of the transcript writes to the court reporter and opposing counsel to identify

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the specific portions of testimony which are deemed by him or her to include confidential

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information. The reporter shall promptly conform the original copy and counsel shall conform

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their copies in accordance with the requesting attorney’s designation. All deposition testimony

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of a witness which is designated “Confidential” shall be contained in a separate transcript, the

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first page of which shall bear the legend “Confidential – Subject to Protective Order.” To

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facilitate “Confidential” designation of deposition testimony within 10 days of receipt of the

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transcript, the parties shall treat all deposition testimony during that 10-day period as

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provisionally designated “Confidential” subject to the protections of this Order.

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8.

Any document, information or testimony designated as “Confidential – Subject

to Protective Order” in accordance with paragraphs 2, 3 and/or 4 above shall not be used for
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any purpose whatsoever other than in connection with the prosecution, defense or settlement

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of this Action.

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furnished or disclosed in whole or in part to any person, firm, entity or organization except to

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(a) counsel of record for the parties in this Action, and counsel and staff in Defendant PG&E

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and IBEW’s in-house Law Departments; (b) persons regularly employed by the law firms

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representing Plaintiff and/or the firms representing Defendants PG&E and IBEW; (c) court

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personnel in connection with the performance of their responsibilities relative to this Action;

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(d) court reporters transcribing testimony of witnesses in this Action; (e) expert witnesses and

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consultants (including professional jury or trial consultants, and mock jurors) retained for the

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purpose of assisting counsel for a party in defending or prosecuting this Action; or (f) a witness

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at deposition to whom disclosure is necessary for this litigation to the extent he/she agrees on

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the record to be bound by this order and either authored the document or information in

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question or has a need to know or be shown the document or information in the course of

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providing testimony. However, nothing herein shall in any way limit a party’s ability to use or

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disclose documents/information/testimony which its own counsel has designated “Confidential

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– Subject to Protective Order.” Disclosure of documents/information/testimony designated as

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“Confidential – Subject to Protective Order,” or use of the aforementioned confidential

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documents/information/testimony in a manner that runs contrary to this Paragraph by a party

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whose counsel made that designation, or by that party’s counsel shall constitute waiver of the

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protections otherwise provided in the Order by that designation, relieving other parties or their

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counsel from the restrictions imposed by this Order.

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9.

Such document/information/testimony shall not be delivered, exhibited,

Any person to whom delivery, exhibition or disclosure is made of any

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document, information or testimony described in paragraphs 2, 3 and/or 4 above shall be

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subject to the provisions of this protective order. That includes all persons described in

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paragraph 8.

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Acknowledgement and Agreement attached as Exhibit “A”, but shall be informed by counsel

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of the terms of this Order, and are subject to its provisions.

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disclosure of covered documents/information/testimony to the persons qualified to receive

Persons described in paragraph 8(a), (b), (c) and (d) need not sign the

Prior to delivery, exhibition or

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it/them under paragraph 8 (e), and/or (f), counsel for the party making disclosure shall provide

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each such person a copy of the protective order and shall secure from that person a signed

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confidentiality acknowledgement in the form attached hereto as Exhibit “A.”

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acknowledgement

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document/information/testimony has read this order, that he/she may not and shall not divulge

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any document, information or testimony designated “Confidential – Subject to Protective

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Order” except in strict accordance with the terms and conditions of this Order, and that he/she

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will not utilize any document, information or testimony designated “Confidential” for any

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purpose other than in connection with the prosecution or defense of this Action. All originals

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of signed confidentiality acknowledgements shall be maintained by counsel for the party

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responsible for making the disclosure and shall be made available to the producing party’s

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counsel upon reasonable request.

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10.

shall

state

that

the

person

receiving

or

seeing

the

That
covered

Any party or counsel who files or intends to file a paper or other document with

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the Court which reflects, contains or includes any document/information/testimony designated

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as “Confidential” by an opposing party or that party’s counsel pursuant to the terms of this

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protective order, including any copies, reproductions, abstracts, summaries or quotations of or

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from such document/information/testimony, shall comply with the Local Rules governing such

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filing, including Local Rule 141.

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Any party challenging a “Confidential” designation shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging and

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describing the basis, if known, for each challenge. Notice under this paragraph can be served

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by e-mail to all counsel. To avoid ambiguity as to whether a challenge has been made, the

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written notice must recite that the challenge to confidentiality is being made in accordance with

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this specific paragraph of this Protective Order. The parties shall attempt to resolve each

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challenge in good faith and must begin the process by meeting and conferring directly (in voice

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to voice dialogue; other forms of communication are not sufficient) within seven (7) days of

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the date of service of notice. In conferring, the party making the designation must explain the

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basis for its belief that the confidentiality designation is proper. A challenging party may seek
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judicial intervention only if it has engaged in this meet and confer process first or establishes

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that the designating party is unable or unwilling to participate in the meet and confer process in

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a timely manner.

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12.

Nothing herein shall prevent any party from bringing an appropriate motion

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upon ex parte or regular notice before the Court to have a “Confidential – Subject to Protective

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Order” designation of a document/information/testimony imposed in whole or in part, lifted in

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whole

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document/information/testimony should be restricted other than in accordance with this

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protective order. The party seeking to have the Court make a “Confidential” designation has

or

in

proof

to

determine

of

whether

establishing

the

the

use

or

confidential

disclosure

nature

of

of

such

the

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document/information/testimony. Furthermore, nothing herein shall affect any party’s right to

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make a formal motion upon ex parte or regular notice to the Court for a protective order

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pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and/or applicable Local Rule,

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with regard to any particular document/information/testimony, including for the purpose of

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seeking restrictions greater than those specified herein. Frivolous challenges to a designation,

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and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the challenging party to sanctions.
13.

of

or

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burden

part,

the

The parties agree to meet and confer before the final pretrial conference in this

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Action to arrive at a proposal for how information designated “Confidential- Subject to

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Protective Order” will be handled at trial.

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14.

Within sixty (60) days from the final termination of this Action, including any

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appeals, the parties and their counsel shall either (1) return all materials designated

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confidential, together with any and all copies, summaries and excerpts thereof, to counsel for

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the party producing such materials, or (2) destroy all such materials and certify in writing to the

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counsel for the party producing such materials that they have been destroyed. In accordance

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with this paragraph, the parties and their counsel shall also return to counsel or destroy all

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extracts or summaries of documents/information/testimony designated “Confidential – Subject

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to Protective Order,” except for those materials which in the reasonable, good faith judgment

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of counsel constitute attorney work product.

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If a party or its counsel inadvertently permits the production or disclosure of

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documents/information/testimony of a confidential, private, proprietary or trade secret nature

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without designating it “Confidential – Subject to Protective Order” in accordance with this

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Protective Order, that party or its counsel may thereafter designate the material as

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“Confidential

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document/information/testimony in letters addressed to all parties (through their respective

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counsel), and at that time designating the document/information/testimony as “Confidential –

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Subject to Protective Order.” From the date of receipt of any such letter, all parties and their

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respective counsel shall treat the specific document/information/testimony as confidential in

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accordance with the terms of this Protective Order, subject to further direction from the Court.

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16.

–

Subject

to

Protective

Order”

by

identifying

the

specific

If a party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Protective Order, that

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party must immediately (a) notify in writing the designating party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,

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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the “Acknowledgment and

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

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17.

The obligations of confidentiality contained in this protective order shall remain

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effective following the termination of the Action and the Court shall retain jurisdiction to

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enforce all provisions of this Order as well as to remedy any violation of it. In addition, the

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Court shall at all times have jurisdiction to resolve any dispute which may arise under the

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terms of this Protective Order on an ex parte basis or upon a regularly noticed motion,

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including but not limited to issues concerning whether some document/information/testimony

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has been improperly designated as “Confidential – Subject to Protective Order.”

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18.

By stipulating to the entry of this Protective Order, no party waives any right it

otherwise would have to object to disclosing or producing any information or item on any
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ground not addressed in this Protective Order. Similarly, no Party waives any right to object on

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

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designation of any document, information or testimony shall not be construed as an admission

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of relevance or admissibility. This Order may only be introduced into evidence by a party in

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connection with a motion or other proceeding to enforce the terms or obtain clarification of this

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order.
19.

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Nothing in this Order prevents a party from redacting those portions of a

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document which are not responsive to document requests, or from redacting confidential,

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private or privileged information, or from substituting unique identifiers for persons’ names, to

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protect their privacy.
20.

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Plaintiffs, Defendant PG&E, and Defendant IBEW Local 1245 are each

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separate and distinct parties in this action. Thus, a document designated “Confidential” by

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Defendant PG&E must be treated as “Confidential,” in accordance with the above, by Plaintiffs

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and Defendant IBEW Local 1245, and each of them.

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“Confidential” by Defendant IBEW Local 1245 must be treated as “Confidential,” in

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accordance with the above, by Plaintiffs and Defendant PG&E, and each of them.
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Likewise, a document designated

A non-party that produces documents or information in response to a subpoena

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or other third party discovery, including at or in connection with a deposition, has the same

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right to designate such documents and information as Confidential as the Parties to the Action,

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and once so designated, all such documents and information will be subject to the terms of this

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Order.

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22.

Nothing in this Order abridges the right of any person to seek its modification

by the court in the future.
IT IS SO STIPULATED.

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DATED: August _15_, 2016

WANGER JONES HELSLEY PC

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By:

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/s/ Patrick D. Toole
Patrick D. Toole
Dylan J. Crosby
Erin T. Huntington
Attorneys for PLAINTIFFS on behalf of
themselves and all others similarly situated

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DATED: August _15_, 2016

LITTLER MENDELSON, P.C.

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By:______/s/ Aurelio Pérez ________________
Robert G. Hulteng
Joshua D. Kienitz
Aurelio J. Perez
Attorneys for Defendant, Pacific Gas &
Electric Company

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DATED: August _15_, 2016

LEONARD CARDER, LLP

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By: __/s/ Philip Monrad____________________
Philip Monrad

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IBEW LOCAL 1245
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By: _/s/ Alex Pacheco_______________
Alex Pacheco
Attorneys for Defendant, IBEW Local 1245

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ORDER

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The Court has reviewed the above stipulation and adopts it except that the terms related
to judicial intervention outlined in paragraphs 11 and 12 will not be automatic; rather, the
Court will determine on a case-by-case basis whether judicial intervention is warranted. In
order to file a motion under this paragraph, counsel must receive permission from the Court

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following an informal telephone conference. A party wishing to schedule such a conference

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should contact chambers at [phone] to receive available dates. The Court will schedule

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the conference as soon as possible, taking into consideration the urgency of the issue. Prior to

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the conference, the Court will require the parties to submit letter briefs of no more than 3 pages

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in length to chambers for review. Telephonic conferences will not be on the record and the

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Court will not issue a formal ruling at that time. Nevertheless, the Court will attempt to

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provide guidance to the parties to narrow or dispose of the dispute. If no resolution is reached,

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the Court will consider whether the filing of a formal motion is appropriate.

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The Court declines to adopt paragraph 17 to the extent it is inconsistent with Local Rule
141.1(f).

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IT IS SO ORDERED.
Dated:

August 17, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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