McFarland v. Almond Board of California et al

Filing 29

STIPULATED PROTECTIVE ORDER signed by Judge John A. Mendez on 5/15/13. (Meuleman, A)

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A T K IN S ON ,
N,
A N D E LS ON ,
N , L OY A ,
RUUD &

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ATKINSON, ANDELSON, LOYA, RUUD & ROMO
Howard A. Sagaser
State Bar No. 72492
[e-mail]
Marcia A. Ross
State Bar No. 160489
MRoss @aalrr.com
Ian B. Wieland
State Bar No. 285721
[e-mail]
5260 North Palm Avenue, Suite 300
Fresno, California 93704-2215
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
ALMOND BOARD OF CALIFORNIA
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO
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SUSI McFARLAND,

Case No.

2:12-CV-02778-JAM-CKD

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Plaintiff,

STIPULATED PROTECTIVE ORDER

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v.
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ALMOND BOARD OF CALIFORNIA; TIM
BIRMINGHAM, an individual, and DOES 1100, inclusive,

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Defendants.
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1.

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

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation would be warranted.
Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated
Protective Order. The parties acknowledge that this Order does not confer blanket protections on
all disclosures or responses to discovery and that the protection it affords extends only to the
limited information or items that are entitled under the applicable legal principles to treatment as
confidential.

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STIPULATED PROTECTIVE ORDER

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2.

DEFINITIONS
2.1

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and outside counsel (and their support staff).
2.2

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

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medium or manner generated, stored, or maintained (including, among other things. testimony,

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A T K IN S ON ,
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transcripts, or tangible things) that are produced or generated in disclosures or responses to

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discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of how generated,

stored or maintained) or tangible things that qualify for protection under California Law.
2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or Items: extremely

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sensitive “Confidential Information or Items” whose disclosure to another Party or nonparty

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would create a substantial risk of serious injury that could not be avoided by less restrictive means.

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2.5

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Producing Party.

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2.6

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

Producing Party: a Party or non-party that produces Disclosure or Discovery

Material in this action.
2.7

Designating Party: a Party or non-party that designates information or items that it

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produces in disclosures or in responses to discovery as “Confidential” or “Highly Confidential -

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Attorneys’ Eyes Only.”

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2.8

Protected Material: any Disclosure or Discovery Material that is designated as

“Confidential” or as “Highly Confidential - Attorneys’ Eyes Only.”
2.9.

Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this action.

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2.10

House Counsel: attorneys who are employees of a Party.

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2.11

Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

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support staffs and contractors).
2.12

Expert: a person with specialized knowledge or experience in a matter pertinent to

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

STIPULATED PROTECTIVE ORDER

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consultant in this action and who is not a past or a current employee of a Party or of a competitor

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of a Party’s and who, at the time of retention, is not anticipated to become an employee of a Party

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or a competitor of a Party’s. This definition includes a professional jury or trial consultant

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retained in connection with this litigation.

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2.13

Professional Vendors: persons or entities that provide litigation support services

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

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storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

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3.

SCOPE

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

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(as defined above), but also any information copied or extracted there from, as well as all copies,

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excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by

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parties or counsel to on settings that might reveal Protected Material.

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4.

DURATION

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Even after the termination of this litigation, the confidentiality obligations imposed by this

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a judge order

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otherwise directs.

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5.

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DESIGNATING PROTECTED MATERIAL
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 to

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

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Designating Party must take care to designate for protection only those parts of material,

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

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

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swept 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.

STIPULATED PROTECTIVE ORDER

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If it comes to a Party’s or a non-party’s attention that information or items that it

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designated for protection do not qualify for protection at all, or do not qualify for the level of

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protection initially asserted, that Party or non-party must promptly notify all other parties that it is

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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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material that qualifies for protection under this Order must be clearly so designated before the

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material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (apart from transcripts of depositions

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or other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” at

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the top of each page that contains protected material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly identify

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the protected portion(s) (e.g., by making appropriate markings in the margins) and must

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specify, for each portion, the level of protection being asserted (either “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”).

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A Party or non-party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be deemed

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“HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY.” After the inspecting Party

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

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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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appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY”) at the top of each page that contains Protected Material. If only a portion

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or portions of the material on a page qualifies for protection, the Producing Party also must

STIPULATED PROTECTIVE ORDER

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins) and must specify, for each portion, the level of protection being asserted (either

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”).

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(b)

for testimony given in deposition or in other pretrial or trial proceedings,

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that the Party or non-party designating the testimony as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” may identify on the record, before the

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close of the deposition, hearing, or other proceeding, all protected testimony, and further

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specify any portions of the testimony that qualify as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY”. When it is impractical to identify

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separately each portion of testimony that is entitled to protection, and when it appears that

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substantial portions of the testimony may qualify for protection, the Party or non-party that

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sponsors, offers, or gives the testimony may take up to 20 days after the date the Party or

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non-party receives a copy of the deposition transcript or other transcript from the court

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reporter to identify the specific portions of the testimony as to which protection is sought

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and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL ATTORNEYS’ EYES ONLY”). Only those portions of the testimony

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that are appropriately designated for protection within the 20 days after the date the party

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receives a copy of the deposition transcript or other transcript from the court reporter shall

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be covered by the provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by the

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court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as instructed by the

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Party or nonparty making the confidentiality designation.

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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

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the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” If

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only portions of the information or item warrant protection, the Producing Party, to the

STIPULATED PROTECTIVE ORDER

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extent practicable, shall identify the protected portions, specifying whether they qualify as

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“Confidential” or as “Highly Confidential - Attorneys’ Eyes Only.”

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5.3

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

Eyes Only” does not, standing alone, waive the Designating Party’s right to secure protection

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designate qualified information or items as “Confidential” or “Highly Confidential - Attorneys’

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A T K IN S ON ,
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under this Order for such material. If material is appropriately designated as “Confidential” or

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“Highly Confidential Attorneys’ Eyes Only” after the material was initially produced the

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Receiving Party, on timely notification of the designation, must make reasonable efforts to assure

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that the material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges.

Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a Party does not

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waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating

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Party’s confidentiality designation must do so in good faith and must begin the process by

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conferring with counsel for the Designating Party. In conferring, the challenging Party must

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explain the basis for its belief that the confidentiality designation was not proper and must give the

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Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A challenging Party may proceed to the next stage of the challenge process only if it

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has engaged in this meet and confer process first.

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6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and serve

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a motion with the Court that identifies the challenged material and sets forth in detail the basis for

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the challenge, in compliance with the requirements for such motion under Federal Rule of Civil

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STIPULATED PROTECTIVE ORDER

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Procedure 7(a) and Eastern District Local Rule 230, which is based on Federal Rule of Civil

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Procedure 78.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

A Receiving Party may use Protected Material that is disclosed or produced by another

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7.1

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Party or by a non-party in connection with this case only for prosecuting, defending, or attempting

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to settle this litigation. Such Protected Material may he disclosed only to the categories of persons

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and under the conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 11, below (FINAL DISPOSITION).

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Basic Principles

Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

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Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a

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Disclosure of “CONFIDENTIAL” Information or Items

Receiving Party may disclose any information or item designated CONFIDENTIAL only to:
(a)

the Receiving Party’s Outside Counsel of record in this action, as well as

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employees and agents of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the parties to this action;

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(c)

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

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have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);

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(d)

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 “Agreement to Be

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Bound by Protective Order” (Exhibit A);

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(e)

the Court and its personnel;

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(f)

those present during the trial of this matter, including all pre-trial and

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motion hearings, and during presentation/argument of this evidence unless the Court

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orders otherwise;

STIPULATED PROTECTIVE ORDER

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(g)

Court reporters, their staffs, and professional vendors to whom disclosure

is reasonably necessary for this litigation;

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(h)

deponents and/or witnesses to whom counsel for the parties believe in

matter, to disclose specific documents, and who have signed the “Agreement to Be

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good faith it is necessary, for assistance in their representation in the above-captioned

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Bound by Protective Order” (Exhibit A); provided, however, that this execution

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requirement is waived where an individual is given Confidential Information in the

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presence of opposing counsel on the record while testifying as a deponent or in a court of

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law, so long as the Confidential Information is not retained by the individual after such

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testimony. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must he separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order;

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(i)

the author of the document or the original source of the information; and

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(j)

any other person as to whom the parties in writing agree.

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7.3

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Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS` EYES ONLY” only to:

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

(a)

the Receiving Party’s Outside Counsel of record in this action, as well as

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employees and agents of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the parties to this action;

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(c)

House Counsel of a Receiving Party (1) who has no involvement in

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competitive decision-making or in patent prosecutions, (2) to whom disclosure is

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reasonably necessary for this litigation, and (3) who has signed the “Agreement to Be

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Bound by Protective Order” (Exhibit A);

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(d)

Experts (as defined in this Order) (1) to whom disclosure is reasonably

necessary for this litigation, (2) who have signed the “Agreement to Be Bound by

STIPULATED PROTECTIVE ORDER

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Protective Order” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

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7.4, below, have been followed;

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(e)

the Court and its personnel;

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(f)

those present during the trial of this matter, including all pre-trial and

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motion hearings, and during presentation/argument of this evidence unless the Court orders

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otherwise;

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(g)

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Court reporters, their staffs, and professional vendors to whom disclosure is

reasonably necessary for this litigation;

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(h)

deponents and/or witnesses to whom counsel for the parties believe in good

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faith it is necessary, for assistance in their representation in the above-captioned matter, to

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disclose specific documents, and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A); provided, however, that this execution requirement is

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waived where an individual is given Confidential Information in the presence of opposing

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counsel on the record while testifying as a deponent or in a court of law, so long as the

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Confidential Information is not retained by the individual after such testimony;

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(i)

the author of the document or the original source of the information; and

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(j)

any other person as to whom the parties in writing agree.

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7.4

Procedures for Approving Disclosure of “HIGHLY CONFIDENTIAL -

ATTORNEYS' EYES ONLY” Information or Items to “Experts.”
(a)

Unless otherwise ordered by the Court or agreed in writing by the

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Designating Party, a Party that seeks to disclose to an “Expert” (as defined in this Order)

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any information or item that has been designated “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” first must make a written communication to the

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Designating Party that (1) identifies the specific HIGHLY CONFIDENTIAL information

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that the Receiving Party seeks to disclose to the Expert, and (2) sets forth the full name of

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the Expert and the city and state of his or her primary residence.

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(b)

A Party that makes a request and provides the information specified in the

preceding paragraph may disclose the subject Protected Material to the identified Expert

STIPULATED PROTECTIVE ORDER

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unless, within seven (7) calendar days of delivering the request, the Party receives a written

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objection from the Designating Party. Any such objection must set forth in detail the

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grounds on which it is based.

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(c)

A Party that receives a timely written objection must meet and confer with

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the Designating Party (through direct voice to voice dialogue) to try to resolve the matter

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by agreement. If no agreement is reached, the Party seeking to make the disclosure may

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disclose the subject Protected Material to the identified Expert unless, within ten (10)

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calendar days of sending a written objection to the disclosure, the Designating Party file a

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motion with the Court seeking to prevent the disclosure to the identified expert. Any such

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motion must describe the circumstances with specificity, set forth in detail the reasons why

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the requested disclosure to the Expert should not be permitted, assess the risk of harm that

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the disclosure would entail and suggest any additional means that might be used to reduce

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that risk. In any such proceeding the Party opposing disclosure to the Expert shall bear the

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burden of proving that the risk of harm that the disclosure would entail (under the

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safeguards proposed) outweighs the Receiving Party's need to disclose the Protected

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Material to its Expert.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION.

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If a Receiving Party is served with a subpoena or an order issued in other litigation that

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” The

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Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately

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and in no event more than three court days after receiving the subpoena or order.

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notification must include a copy of the subpoena or court order.

Such

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The purpose of imposing these duties is to afford the Designating Party in this case an

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opportunity to try to protect its confidentiality interests in the court in which the subpoena or order

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issued. The Designating Party shall bear the burdens and the expenses of seeking protection in

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that court of its confidential material and nothing in these provisions should be construed as

STIPULATED PROTECTIVE ORDER

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authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

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another court.

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Material to any person or in any circumstance not authorized under this Stipulated Protective

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

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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 copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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

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Be Bound” that is attached hereto as Exhibit A.

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10.

FILING PROTECTED MATERIAL

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All Confidential Information filed with the Court, and any pleadings, motions or other

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papers disclosing any Confidential Information shall be filed or lodged under seal pursuant to

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Eastern District Local Rule 141. Only portions of filings with the Court containing Confidential

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Information need be filed under seal. The parties agree to cooperate with each other in a good

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faith attempt to file the Confidential Information under seal, but will not be precluded from filing

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documents containing Confidential Information in the ordinary course after a good faith effort to

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file the document under seal is denied by the Court. To the extent that filing under seal is not

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permitted by the Court, no party will file any Confidential Information with the Court without

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providing at least 5 days advance notice to the other parties.

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11.

FINAL DISPOSITION

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Within 75 days of termination of this case, counsel for the parties shall assemble and return

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to each other all documents, material and deposition transcripts designated as Confidential

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Information and all copies of same in their possession or the possession of their employees and/or

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agents, as well as all documents created, produced, reproduced, and any notes, transcripts or other

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written documents derived from Confidential Documents or containing information derived from

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such Confidential Documents, or shall certify the destruction thereof.

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provision, Counsel is entitled to retain an archival copy of all pleadings, motion papers,

STIPULATED PROTECTIVE ORDER

Notwithstanding this

1

transcripts, legal memoranda, correspondence or attorney work product, even if such materials

2

contain Protected Material. Any such archival copies that contain or constitute Protected Material

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remain subject to this Protective Order as set forth in Section 4 (DURATION), above.

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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

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P A L M A V E N U E , S U I T E LA PROF
SUITE 30 0
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CALIFORNIA 9370 493704 -22 15
TELEP HON E: (55 9)
(559 ) 2 25- 6700

A T K IN S ON ,
N,
A N D E LS ON ,
N , L OY A ,
RUUD &

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seek its modification by the Court in the future or to compel discovery or seek sanctions from the

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Court.

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12.2

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

9

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

10

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

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

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covered by this Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: May 14, 2013

ATKINSON, ANDELSON, LOYA, RUUD & ROMO

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By:

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Dated: May 14, 2013

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PROUT - LEVANGIE
By:

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Dated: May 15, 2013

/s/
Howard A. Sagaser
Marcia A. Ross
Attorneys for Defendant
ALMOND BOARD OF CALIFORNIA

/s/
Michael Baytosh
Attorneys for Defendant
TIM BIRMINGHAM

SHIMODA LAW CORPORATION
By:

/s/
Galen T. Shimoda
Attorneys for Plaintiff
SUSI McFARLAND

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STIPULATED PROTECTIVE ORDER

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Based on the above stipualtion of the parties, and for good cause shown,

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IT IS SO ORDERED.

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Dated: May 15, 2013
/s/ John A. Mendez_______________________
UNITED STATES DISTRICT COURT JUDGE

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P A L M A V E N U E , S U I T E LA PROF
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CALIFORNIA 9370 493704 -22 15
TELEP HON E: (55 9)
(559 ) 2 25- 6700

A T K IN S ON ,
N,
A N D E LS ON ,
N , L OY A ,
RUUD &

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I,

______________________

[print

or

type

full

name],

of

that I have read in its entirety and understand the Stipulated Protective Order that was issued by

6

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P A L M A V E N U E , S U I T E LA PROF
SUITE 30 0
CORP
FRES NO , CALIF OR NIA
CALIFORNIA 9370 493704 -22 15
TELEP HON E: (55 9)
(559 ) 2 25- 6700

______________________________ [print or type full address], declare under penalty of perjury

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A T K IN S ON ,
N,
A N D E LS ON ,
N , L OY A ,
RUUD &

4

the United States District Court, Eastern District of the State of California on ______________,

7

2013 in the case of Susi McFarland v. Almond Board Of California; et al., Case No. 2:12-CV-

8

02778-JAM-CKD. I agree to comply with and to be bound by all terms of this Stipulated

9

Protective Order unless and until modified by further Order of the Court or agreement of the

10

parties may result in an award of sanctions.

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

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District of the State of California for the purpose of enforcing the terms of this Stipulated

13

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

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Date: _____________________________

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Printed Name: _____________________________

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Signature: _____________________________

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011229.00014
11247172.1

STIPULATED PROTECTIVE ORDER