Romaine v. Ford Motor Company

Filing 24

ORDER entering Stipulated Protective Order - Discovery Only 23 signed by Magistrate Judge Stanley A. Boone on 5/14/2024. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER ENTERING STIPULATED
PROTECTIVE ORDER – DISCOVERY
ONLY

Plaintiff,

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Case No. 1:23-cv-00766-SAB

DAVID ROMAINE,

v.

(ECF No. 23)

FORD MOTOR COMPANY,

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Defendant.

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1.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, commercially sensitive, personally identifiable information (“PII”) or

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private information for which special protection from public disclosure and from use for any

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purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures or responses

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

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

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under seal;

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Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will

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be applied when a party seeks permission from the court to file material under seal.

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2.

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c), including materials that contain trade secret or other confidential

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research, technical, cost, price, marketing, or other commercial information, which are, for

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competitive reasons, normally, kept confidential by the parties, as contemplated by Federal

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Rules of Civil Procedure 26(c)(1)(G).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that

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it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “SUBJECT

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TO PROTECTIVE ORDER.”

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2.5

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

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in disclosures

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or responses to discovery in this matter.

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2.6

Expert: a non-attorney person with specialized knowledge or experience in a

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

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expert witness or as a consultant in this action, provided that no disclosure shall be made to any

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expert or consultant who is currently employed by a competitor of the Designating Party.

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2.7

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this

action but are retained to represent or advise a party to this action and have appeared in this
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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party.

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2.10 Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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

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subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

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

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected

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Material. However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time of disclosure

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

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

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of the public record through trial or otherwise; and (b) any information known to the Receiving

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Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.
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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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The Designating Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify – so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
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(a) For information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” to each

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page that contains protected material.

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A Party or Non-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 “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” legend to each page that

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contains Protected Material.

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

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the Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.

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

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other tangible items, that the Producing Party 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

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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.”

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenged designation by Bates number, and describing the basis for each challenge.

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To avoid ambiguity as to whether a challenge has been made, the written notice must recite that

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the challenge to confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and must

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begin the process by conferring directly (in voice to voice dialogue; other forms of

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communication are not sufficient) within 14 days of the date of service of notice. In conferring,

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the Challenging Party must explain the basis for its belief that the confidentiality designation

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was not proper and must give the Designating Party an opportunity to review the designated

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material, to reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for the chosen designation. A Challenging Party may proceed to the next stage of the

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challenge process only if it has engaged in this meet and confer process first or establishes that

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the Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality within

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21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet

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and confer process will not resolve their dispute, whichever is earlier. Each such motion must

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be accompanied by a competent declaration affirming that the movant has complied with the

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meet and confer requirements imposed in the preceding paragraph. Failure by the Designating

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Party to make such a motion including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a confidentiality
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designation at any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph.

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

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).

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

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated “CONFIDENTIAL” only to:

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

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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

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Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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is reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters, videographers, and their staff, who are not personnel of the

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court, professional jury or trial consultants, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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

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

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must

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be separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information provided that these individuals

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may only be shown the protected information and may not retain a copy of the protected

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information that was produced in this case.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

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

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disclosure of any information or items designated in this action as “CONFIDENTIAL” or

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“SUBJECT TO PROTECTIVE ORDER,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
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in the other litigation that some or all of the material covered by the subpoena or order is subject

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to this Protective Order. Such notification shall include a copy of this Stipulated Protective

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Order; and

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

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

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

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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the Designating

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Party’s permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful

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directive from another court.

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9.

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

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

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in this action and designated as “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE

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ORDER.” Such information produced by Non-Parties in connection with this litigation is

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

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

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

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Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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

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or all of the information requested is subject to a confidentiality agreement with a Non-Party;

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

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

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of the information requested; and
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(3) make the information requested available for inspection by the Non-Party.

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

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14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If the

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement with the

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Non-Party before a determination by the court. Absent a court order to the contrary, the Non-

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Party shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving 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 Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of

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a communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.
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12.

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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.

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

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Order no Party waives any right it otherwise would have to object to disclosing or producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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12.3 Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice, or upon another timeframe agreeable under the

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circumstances, to all interested persons, a Party may not file in the public record in this action

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any Protected Material. A Party that seeks to file under seal any Protected Material must comply

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with Local Rule 141. Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue. A sealing order will issue only

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upon a request establishing that the Protected Material at issue is privileged, protectable as a

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trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to

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file Protected Material under seal is

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denied by the court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Upon final termination of this action, including any and all appeals, counsel for each party

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must, upon request of the producing party, return all confidential information to the party that

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produced the information, including any copies, excerpts, and summaries of that information,

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or must destroy same at the option of the receiving party, and must purge all such information

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from all machine-readable media on which it resides. Notwithstanding the foregoing, counsel

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for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed

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with the Court that refer to or incorporate confidential information, and will continue to be

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bound by this Order with respect to all such retained information.
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print

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or type full address], declare under penalty of perjury that I have read in its entirety and

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

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for the Eastern District of California on [

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MOTOR COMPANY, Case No. 1:23-cv-00766-JLT-SAB. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the nature of contempt.

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I solemnly promise that I will not disclose in any manner any information or item that is subject

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

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provisions of this Order.

] in the case of DAVID ROMAINE v. FORD

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

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: ___________________________

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Printed name: _______________________________

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Signature: __________________________________

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COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER

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Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY

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ORDERED that:

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1.

The above stipulated protective order is ENTERED;

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2.

The provisions of the parties’ stipulation and this protective order shall remain in

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effect until further order of the Court;

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3.

The parties are advised that pursuant to the Local Rules of the United States

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District Court, Eastern District of California, any documents which are to be

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filed under seal will require a written request which complies with Local Rule

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141;

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4.

The party making a request to file documents under seal shall be required to

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show either good cause or compelling reasons to seal the documents, depending

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on the type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th

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Cir. 2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th

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Cir. 2016); and

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5.

If a party’s request to file Protected Material under seal is denied by the Court,

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then the previously filed material shall be immediately accepted by the court and

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become information in the public record and the information will be deemed

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filed as of the date that the request to file the Protected Information under seal

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was made.

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IT IS SO ORDERED.
Dated:

May 14, 2024
UNITED STATES MAGISTRATE JUDGE

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