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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ORDER ENTERING STIPULATED PROTECTIVE ORDER – DISCOVERY ONLY Plaintiff, 11 12 Case No. 1:23-cv-00766-SAB DAVID ROMAINE, v. (ECF No. 23) FORD MOTOR COMPANY, 13 Defendant. 14 15 1. PURPOSES AND LIMITATIONS 16 Disclosure and discovery activity in this action are likely to involve production of 17 confidential, proprietary, commercially sensitive, personally identifiable information (“PII”) or 18 private information for which special protection from public disclosure and from use for any 19 purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby 20 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 21 acknowledge that this Order does not confer blanket protections on all disclosures or responses 22 to discovery and that the protection it affords from public disclosure and use extends only to the 23 limited information or items that are entitled to confidential treatment under the applicable legal 24 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this 25 Stipulated Protective Order does not entitle them to file confidential information under seal; 26 Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will 27 be applied when a party seeks permission from the court to file material under seal. 28 /// 1 1 2 3 4 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 5 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 6 of Civil Procedure 26(c), including materials that contain trade secret or other confidential 7 research, technical, cost, price, marketing, or other commercial information, which are, for 8 competitive reasons, normally, kept confidential by the parties, as contemplated by Federal 9 Rules of Civil Procedure 26(c)(1)(G). 10 11 12 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that 13 it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “SUBJECT 14 TO PROTECTIVE ORDER.” 15 2.5 Disclosure or Discovery Material: all items or information, regardless of the 16 medium or manner in which it is generated, stored, or maintained (including, among other 17 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 18 or responses to discovery in this matter. 19 2.6 Expert: a non-attorney person with specialized knowledge or experience in a 20 matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an 21 expert witness or as a consultant in this action, provided that no disclosure shall be made to any 22 expert or consultant who is currently employed by a competitor of the Designating Party. 23 24 25 26 27 28 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. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 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 2 1 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 2 that party. 3 4 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). 5 6 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 7 2.12 Professional Vendors: persons or entities that provide litigation support services 8 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 9 organizing, storing, or retrieving data in any form or medium) and their employees and 10 subcontractors. 11 12 2.13 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.” 13 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 14 Producing Party. 15 3. SCOPE 16 The protections conferred by this Stipulation and Order cover not only Protected 17 Material (as defined above), but also (1) any information copied or extracted from Protected 18 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 19 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 20 Material. However, the protections conferred by this Stipulation and Order do not cover the 21 following information: (a) any information that is in the public domain at the time of disclosure 22 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving 23 Party as a result of publication not involving a violation of this Order, including becoming part 24 of the public record through trial or otherwise; and (b) any information known to the Receiving 25 Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 26 who obtained the information lawfully and under no obligation of confidentiality to the 27 Designating Party. Any use of Protected Material at trial shall be governed by a separate 28 agreement or order. 3 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations imposed by 3 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 4 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 5 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 6 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 7 action, including the time limits for filing any motions or applications for extension of time 8 pursuant to applicable law. 9 5. DESIGNATING PROTECTED MATERIAL 10 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 11 or Non-Party that designates information or items for protection under this Order must take care 12 to limit any such designation to specific material that qualifies under the appropriate standards. 13 The Designating Party must designate for protection only those parts of material, documents, 14 items, or oral or written communications that qualify – so that other portions of the material, 15 documents, items, or communications for which protection is not warranted are not swept 16 unjustifiably within the ambit of this Order. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 18 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 19 unnecessarily encumber or retard the case development process or to impose unnecessary 20 expenses and burdens on other parties) expose the Designating Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it designated 22 for protection do not qualify for protection, that Designating Party must promptly notify all other 23 Parties that it is withdrawing the mistaken designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 25 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 26 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly 27 so designated before the material is disclosed or produced. 28 Designation in conformity with this Order requires: 4 1 (a) For information in documentary form (e.g., paper or electronic documents, but 2 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 3 Party affix the legend “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” to each 4 page that contains protected material. 5 A Party or Non-Party that makes original documents or materials available for inspection 6 need not designate them for protection until after the inspecting Party has indicated which 7 material it would like copied and produced. During the inspection and before the designation, 8 all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 9 inspecting Party has identified the documents it wants copied and produced, the Producing Party 10 must determine which documents, or portions thereof, qualify for protection under this Order. 11 Then, before producing the specified documents, the Producing Party must affix the 12 “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” legend to each page that 13 contains Protected Material. 14 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 15 the Designating Party identify on the record, before the close of the deposition, hearing, or other 16 proceeding, all protected testimony. 17 (c) for information produced in some form other than documentary and for any 18 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 19 container or containers in which the information or item is stored the legend 20 “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.” 21 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 22 designate qualified information or items does not, standing alone, waive the Designating Party’s 23 right to secure protection under this Order for such material. Upon timely correction of a 24 designation, the Receiving Party must make reasonable efforts to assure that the material is 25 treated in accordance with the provisions of this Order. 26 6. 27 28 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 5 1 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 2 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 3 challenge a confidentiality designation by electing not to mount a challenge promptly after the 4 original designation is disclosed. 5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 6 process by providing written notice of each designation it is challenging and describing the basis 7 for each challenged designation by Bates number, and describing the basis for each challenge. 8 To avoid ambiguity as to whether a challenge has been made, the written notice must recite that 9 the challenge to confidentiality is being made in accordance with this specific paragraph of the 10 Protective Order. The parties shall attempt to resolve each challenge in good faith and must 11 begin the process by conferring directly (in voice to voice dialogue; other forms of 12 communication are not sufficient) within 14 days of the date of service of notice. In conferring, 13 the Challenging Party must explain the basis for its belief that the confidentiality designation 14 was not proper and must give the Designating Party an opportunity to review the designated 15 material, to reconsider the circumstances, and, if no change in designation is offered, to explain 16 the basis for the chosen designation. A Challenging Party may proceed to the next stage of the 17 challenge process only if it has engaged in this meet and confer process first or establishes that 18 the Designating Party is unwilling to participate in the meet and confer process in a timely 19 manner. 20 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 21 intervention, the Designating Party shall file and serve a motion to retain confidentiality within 22 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet 23 and confer process will not resolve their dispute, whichever is earlier. Each such motion must 24 be accompanied by a competent declaration affirming that the movant has complied with the 25 meet and confer requirements imposed in the preceding paragraph. Failure by the Designating 26 Party to make such a motion including the required declaration within 21 days (or 14 days, if 27 applicable) shall automatically waive the confidentiality designation for each challenged 28 designation. In addition, the Challenging Party may file a motion challenging a confidentiality 6 1 designation at any time if there is good cause for doing so, including a challenge to the 2 designation of a deposition transcript or any portions thereof. Any motion brought pursuant to 3 this provision must be accompanied by a competent declaration affirming that the movant has 4 complied with the meet and confer requirements imposed by the preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the Designating 6 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 7 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 8 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 9 file a motion to retain confidentiality as described above, all parties shall continue to afford the 10 material in question the level of protection to which it is entitled under the Producing Party’s 11 designation until the court rules on the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 14 or produced by another Party or by a Non-Party in connection with this case only for 15 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 16 disclosed only to the categories of persons and under the conditions described in this Order. 17 When the litigation has been terminated, a Receiving Party must comply with the provisions of 18 section 13 below (FINAL DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a location and 20 in a secure manner that ensures that access is limited to the persons authorized under this Order. 21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 22 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 23 disclose any information or item designated “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 26 information for this litigation and who have signed the Acknowledgment and Agreement to Be 27 Bound” that is attached hereto as Exhibit A; 28 (b) the officers, directors, and employees (including House Counsel) of the 7 1 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 2 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure 4 is reasonably necessary for this litigation and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters, videographers, and their staff, who are not personnel of the 8 court, professional jury or trial consultants, and Professional Vendors to whom disclosure is 9 reasonably necessary for this litigation and who have signed the “Acknowledgment and 10 Agreement to Be Bound” (Exhibit A); 11 (f) during their depositions, witnesses in the action to whom disclosure is 12 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 13 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 14 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must 15 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 16 under this Stipulated Protective Order. 17 (g) the author or recipient of a document containing the information or a custodian 18 or other person who otherwise possessed or knew the information provided that these individuals 19 may only be shown the protected information and may not retain a copy of the protected 20 information that was produced in this case. 21 8. 22 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation that compels 24 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 25 “SUBJECT TO PROTECTIVE ORDER,” that Party must: 26 27 28 (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 8 1 in the other litigation that some or all of the material covered by the subpoena or order is subject 2 to this Protective Order. Such notification shall include a copy of this Stipulated Protective 3 Order; and 4 5 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the 7 subpoena or court order shall not produce any information designated in this action as 8 “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” before a determination by the 9 court from which the subpoena or order issued, unless the Party has obtained the Designating 10 Party’s permission. The Designating Party shall bear the burden and expense of seeking 11 protection in that court of its confidential material – and nothing in these provisions should be 12 construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 13 directive from another court. 14 9. 15 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 16 (a) The terms of this Order are applicable to information produced by a Non-Party 17 in this action and designated as “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE 18 ORDER.” Such information produced by Non-Parties in connection with this litigation is 19 protected by the remedies and relief provided by this Order. Nothing in these provisions should 20 be construed as prohibiting a Non-Party from seeking additional protections. 21 (b) In the event that a Party is required, by a valid discovery request, to produce a 22 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 23 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non-Party that some 25 or all of the information requested is subject to a confidentiality agreement with a Non-Party; 26 (2) promptly provide the Non-Party with a copy of the Stipulated Protective 27 Order in this litigation, the relevant discovery request(s), and a reasonably specific description 28 of the information requested; and 9 1 (3) make the information requested available for inspection by the Non-Party. 2 (c) If the Non-Party fails to object or seek a protective order from this court within 3 14 days of receiving the notice and accompanying information, the Receiving Party may 4 produce the Non-Party’s confidential information responsive to the discovery request. If the 5 Non-Party timely seeks a protective order, the Receiving Party shall not produce any 6 information in its possession or control that is subject to the confidentiality agreement with the 7 Non-Party before a determination by the court. Absent a court order to the contrary, the Non- 8 Party shall bear the burden and expense of seeking protection in this court of its Protected 9 Material. 10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 12 Material to any person or in any circumstance not authorized under this Stipulated Protective 13 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 14 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 15 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 16 made of all the terms of this Order, and (d) request such person or persons to execute the 17 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 18 11. 19 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 20 When a Producing Party gives notice to Receiving Parties that certain inadvertently 21 produced material is subject to a claim of privilege or other protection, the obligations of the 22 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 23 provision is not intended to modify whatever procedure may be established in an e-discovery 24 order that provides for production without prior privilege review. Pursuant to Federal Rule of 25 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of 26 a communication or information covered by the attorney-client privilege or work product 27 protection, the parties may incorporate their agreement in the stipulated protective order 28 submitted to the court. 10 1 12. 2 3 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. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 5 Order no Party waives any right it otherwise would have to object to disclosing or producing 6 any information or item on any ground not addressed in this Stipulated Protective Order. 7 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 8 material covered by this Protective Order. 9 12.3 Filing Protected Material. Without written permission from the Designating Party 10 or a court order secured after appropriate notice, or upon another timeframe agreeable under the 11 circumstances, to all interested persons, a Party may not file in the public record in this action 12 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 13 with Local Rule 141. Protected Material may only be filed under seal pursuant to a court order 14 authorizing the sealing of the specific Protected Material at issue. A sealing order will issue only 15 upon a request establishing that the Protected Material at issue is privileged, protectable as a 16 trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to 17 file Protected Material under seal is 18 denied by the court, then the Receiving Party may file the information in the public record unless 19 otherwise instructed by the court. 20 13. FINAL DISPOSITION 21 Upon final termination of this action, including any and all appeals, counsel for each party 22 must, upon request of the producing party, return all confidential information to the party that 23 produced the information, including any copies, excerpts, and summaries of that information, 24 or must destroy same at the option of the receiving party, and must purge all such information 25 from all machine-readable media on which it resides. Notwithstanding the foregoing, counsel 26 for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed 27 with the Court that refer to or incorporate confidential information, and will continue to be 28 bound by this Order with respect to all such retained information. 11 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print 4 or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court 6 for the Eastern District of California on [ 7 MOTOR COMPANY, Case No. 1:23-cv-00766-JLT-SAB. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge 9 that failure to so comply could expose me to sanctions and punishment in the nature of contempt. 10 I solemnly promise that I will not disclose in any manner any information or item that is subject 11 to this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order. ] in the case of DAVID ROMAINE v. FORD 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 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 Printed name: _______________________________ 24 Signature: __________________________________ 25 26 27 28 12 1 COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY 3 ORDERED that: 4 1. The above stipulated protective order is ENTERED; 5 2. The provisions of the parties’ stipulation and this protective order shall remain in 6 effect until further order of the Court; 7 3. The parties are advised that pursuant to the Local Rules of the United States 8 District Court, Eastern District of California, any documents which are to be 9 filed under seal will require a written request which complies with Local Rule 10 141; 11 4. The party making a request to file documents under seal shall be required to 12 show either good cause or compelling reasons to seal the documents, depending 13 on the type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th 14 Cir. 2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th 15 Cir. 2016); and 16 5. If a party’s request to file Protected Material under seal is denied by the Court, 17 then the previously filed material shall be immediately accepted by the court and 18 become information in the public record and the information will be deemed 19 filed as of the date that the request to file the Protected Information under seal 20 was made. 21 22 23 IT IS SO ORDERED. Dated: May 14, 2024 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 13

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