Rhodehouse v. Ford Motor Company

Filing 21

STIPULATED SHARING and NON-SHARING PROTECTIVE ORDER signed by District Judge John A. Mendez on 8/23/17. (Kaminski, H)

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AMIR NASSIHI (SBN: 235936)
[e-mail]
JOAN R. CAMAGONG (SBN: 288217)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
One Montgomery, Suite 2700
San Francisco, California 94104-2828
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
FORD MOTOR COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEREK RHODEHOUSE,

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Plaintiff,

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Case No. 2:16-cv-01892-JAM-CMK
STIPULATED SHARING AND NONSHARING PROTECTIVE ORDER

v.
FORD MOTOR COMPANY and DOES 1 TO
20, Inclusive,
Defendants.

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In order to preserve and maintain the confidentiality of certain confidential, commercial
and/or proprietary documents and information produced or to be produced by FORD MOTOR
COMPANY (“Ford”) or by any party in this action, it is ordered that:
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Documents or information to be produced or provided by Ford or any party in this

litigation that contain confidential, commercially sensitive, private personal information and/or
proprietary information may be designated as confidential by marking or placing the applicable
notice “Subject to Non-Sharing Protective Order,” “Subject to Protective Order,” or “Confidential,”
or substantially similar language on media containing the documents, on the document itself, or on a
copy of the document, in such a way that it does not obscure the text or other content of the
document.

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2.

As used in this Order, the terms “documents” or “information” mean all written

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material, electronic data, videotapes and all other tangible items, produced in whatever format (e.g.,

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hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape, computer

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diskette, CD-ROM, DVD, by secure electronic transmission, hard drive or otherwise).

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3.

Documents or information designated as “Subject to Non-Sharing Protective Order,”

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“Subject to Protective Order,” or “Confidential” or substantially similar language in accordance with

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the provisions of this Order (“Protected Documents” or “Protected Information”) shall only be used,

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shown or disclosed as provided in this Order. However, nothing in this Order shall limit a party’s

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use or disclosure of his or her own information designated as a Protected Document or Protected

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Information.

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4.

If a receiving party disagrees with the “Protected” designation of any document or

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information, the party will notify the producing party in a written letter and identify the challenged

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document(s) with specificity, including Bates-number(s) where available, and the specific grounds

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for the objection to the designation. If the parties are unable to resolve the issue of confidentiality

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regarding the challenged document(s), Ford will thereafter timely apply to the Court to set a hearing

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for the purpose of establishing that the challenged document(s) or information is/are confidential.

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Protected Documents will continue to be treated as such pending determination by the Court as to

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the confidential status.

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5.

Protected Documents and any copies thereof shall be maintained confidential by the

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persons authorized to receive the documents pursuant to paragraph 6 and shall be used only for

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prosecuting, defending, or attempting to settle this litigation, subject to the limitations set forth

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herein.

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6.

Protected Documents shall be disclosed only to “Qualified Persons.”

Qualified

Persons are limited to:

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a.

Counsel of Record for the parties, and the parties;

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b.

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Paralegals and staff employed by Counsel of Record and involved in the
preparation and trial of this action;

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c.

A vendor hired by a party to host data and maintain a database of electronic

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data or perform other work related to the collection, review or production of

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documents in the case;

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d.

Experts and non-attorney consultants retained by the parties for the

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preparation and/or trial of this case, provided that no disclosure shall be made

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to any expert or consultant who is employed by a competitor of Ford;

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e.

The Court, the Court’s staff, witnesses, and the jury in this case; and

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f.

With respect to documents designated as “Sharing” or “Subject to Protective

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Order,” attorneys representing Plaintiff(s) and the experts and non-attorney

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consultants retained by such attorneys, in other cases pending against Ford

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involving a 1999-2007 Ford F-250/350/450 (P131) pickup truck with claims

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that the roof, handling and stability, or restraints were defective provided no

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disclosure shall be made to any expert or consultant who is employed by a

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competitor of Ford.

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7.

The receiving party must make reasonable efforts to ensure the individuals described

in paragraphs 6(b), 6(c), 6(d) and 6(f) above are Qualified Persons.
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Before receiving access to any Protected Document or the information contained

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therein, each person described in paragraphs 6(b), 6(c), 6(d) and 6(f) above shall execute a “Written

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Assurance” in the form contained in Exhibit A, attached hereto. The receiving party shall retain

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each such executed Written Assurance and shall keep a list identifying (a) all persons described in

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paragraphs 6(b), 6(c), 6(d) and 6(f) above to whom Protected Documents have been disclosed, and

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(b) all Protected Documents disclosed to such persons. Each such executed Written Assurance and

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list shall be submitted to counsel for Ford at the termination of this litigation or upon Order of the

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Court requiring production, whichever comes first. However, for consulting experts who were not

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designated as testifying experts, the receiving party may redact the name, address, and signature of

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the consultant before disclosing the executed Exhibit A and document list for that person. To the

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extent the “Qualified Persons” described in paragraph 6(d) and 6(f) above include privileged non-

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testifying expert consultants, the receiving party shall retain each such executed Exhibit A and shall

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keep a list identifying (a) all such non-testifying expert consultants described in paragraphs 6(d) and

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6(f) above to whom Protected Documents have been disclosed, and (b) all Protected Documents

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disclosed to such persons. In the event that Ford (or the producing party) seeks to compel the

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production of each unredacted and executed Exhibit A for good cause, the receiving party shall

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submit each unredacted and executed Exhibit A and list to the Court for in camera inspection.

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Persons described in paragraph 6(b) shall be covered under the signature of Counsel of Record.
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As the Protected Documents may only be distributed to Qualified Persons, Qualified

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Persons may not post Protected Documents on any website or internet accessible document

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repository, excepting a vendor hosted review platform for the sole purpose of reviewing the

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information for the subject case and not for any other purpose, and shall not under any circumstance

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sell, offer for sale, advertise, or publicize either the Protected Documents and the Confidential

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information contained therein or the fact that such persons have obtained Ford’s (or the producing

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party’s) Protected Documents and confidential information.

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10.

To the extent that Protected Documents or information obtained therefrom are used in

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the taking of depositions (including exhibits) or other pretrial testimony and/or used as exhibits at

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trial, such documents or information shall remain subject to the provisions of this Order, along with

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the transcript pages of the deposition testimony and/or trial testimony dealing with, referring to or

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referencing the Protected Documents or information. Designation of the portion of the transcript

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(including exhibits) which contains references to Protected Documents or information shall be made

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(i) by a statement to such effect on the record during the proceeding in which the testimony is

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received, or (ii) by written notice served on counsel of record in this Litigation within thirty (30)

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business days after the receipt of the draft or final transcript (whichever is received earlier) of such

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proceeding (as used herein, the term “draft transcript” does not include an ASCII or rough

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transcript).

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transcripts of depositions or other testimony shall be treated as Protected Documents. All portions of

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transcripts not designed as Confidential within the time frame provided herein shall be deemed not

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confidential.

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However, before such thirty (30) day period expires, all testimony, exhibits and

If any party disagrees with the designation of all or part of a deposition transcript

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designated as “Protected” pursuant to Paragraph 10 above, such party must notify the designating

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party in a written letter and identify the testimony (by line and page designation) and the specific

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grounds for the objection to the designation. If the parties are unable to resolve the issue of

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confidentiality regarding the challenged deposition testimony, the designating party will thereafter

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timely apply to the Court to set a hearing for the purpose of establishing that the challenged

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deposition testimony is confidential. The designated deposition testimony at issue, and any related

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exhibits, will continue to be treated as a Protected Document, in accord with its respective

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designation, pending determination by the Court as to the confidential status.

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12.

All documents that are filed with the Court that contain any portion of any Protected

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Document or information taken from any Protected Document shall be filed under seal by following

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the protocols for sealed filings in this Court. If a party believes that documents designated as

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Protected Documents cannot or should not be sealed, pursuant to the protocols and rules in this

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Court, then the party wishing to file the materials shall particularly identify the documents or

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information that it wishes to file to the producing party, in writing. The parties will then meet and

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confer, in a good faith effort to resolve the dispute. Failing agreement, the party wishing to file the

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materials must request a ruling from the Court on whether the Protected Documents in question must

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be submitted under seal. The producing party shall have the burden of justifying that the materials

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must be submitted under seal. Absent written permission from the producing party or a court Order

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denying a motion to seal, a receiving party may not file in the public record any Protected

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Documents.

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13.

To the extent Ford (or the producing party) is requested to produce documents it has

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determined should not be subject to the sharing provision of this protective order in paragraph 6(f),

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Ford (or the producing party) will designate such documents as “Non-Sharing.”

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designated as “Non-Sharing” shall not be shared under paragraph 6(f).

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14.

Documents

With respect to Protected Documents designated as “Non-Sharing,” within one

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hundred and twenty (120) days after the conclusion of this case, counsel for the parties who received

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Protected Documents, including any documents that any such party disclosed to any person

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described in paragraph 6(b) or (c) above, shall either (a) return to Ford (or the producing party) the

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Protected Documents; or (b) securely destroy the Protected Documents and certify such destruction

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to Ford (or the producing party) within one hundred and fifty (150) days after the conclusion of this

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case.

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With respect to documents designated as “Sharing” or “Subject to Protective Order,”

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Counsel for the parties shall not be required to return the Protected Documents to Ford after the

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conclusion of this case and may retain the documents pursuant to the terms of this Order.

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16.

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Submission to regulatory agency or governmental entity:
a.

This protective order shall not be construed to prohibit Ford’s disclosure or

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production of safety-related information to a regulatory agency or

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governmental entity with an interest in the safety-related information.

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Material subject to this protective order may only be disclosed to a regulatory

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agency or governmental entity with an interest in the safety-related

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information by Ford, and such disclosure shall be made pursuant to 49 CFR

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512 or similar applicable rules.

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b.

If other parties to this protective order have a reasonable belief that certain

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documents are safety-related and need to be disclosed to a regulatory agency

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or governmental entity, they are not prohibited from advising the regulatory

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agency or governmental entity that they believe such documents were

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produced in this case, however, any disclosure of such documents shall adhere

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to the procedure described in Paragraph 16(a).

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Inadvertent or unintentional production of documents or information containing

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confidential information that should have been designated as Protected Document(s) shall not be

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deemed a waiver in whole or in part of the party's claims of confidentiality.

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The parties may disclose and produce responsive documents to each other in this

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litigation, and seek to do so without risking waiver of any attorney-client privilege, work product or

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other applicable privilege or protection. As such, the parties will adhere to the following procedures

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with regard to the production of privileged or protected material, should that occur:

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a.

The production of documents (including both paper documents and

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electronically stored information or “ESI”) subject to protection by the

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attorney-client and/or work product doctrine or by another legal privilege

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protecting information from discovery, shall not constitute a waiver of any

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privilege or other protection, provided that the producing party notifies the

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receiving party, in writing, of the production after its discovery of the same.

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b.

If the producing party notifies the receiving party after discovery that

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privileged materials (hereinafter referred to as the “Identified Materials”) have

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been produced, the Identified Materials and all copies of those materials shall

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be returned to the producing party or destroyed or deleted, on request of the

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producing party. The producing party will provide a privilege log providing

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information upon request or if required by the Federal Rules of Civil

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Procedure and applicable case law to the receiving party at the time the

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producing party provides the receiving party notice of the Identified Materials.

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If the receiving party has any notes or other work product reflecting the

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contents of the Identified Materials, the receiving party will not review or use

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those materials unless a court later designates the Identified Materials as not

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privileged or protected.

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c.

The Identified Materials shall be deleted from any systems used to house the

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documents, including document review databases, e-rooms and any other

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location that stores the documents. The receiving party may make no use of

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the Identified Materials during any aspect of this matter or any other matter,

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including in depositions or at trial, unless the documents have been designated

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by a court as not privileged or protected.

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d.

The contents of the Identified Materials shall not be disclosed to anyone who

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was not already aware of the contents of them before the notice was made.

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The receiving party must take reasonable steps to retrieve the Identified

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Materials if the receiving party disclosed the Identified Materials before being

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notified.

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e.

If any receiving party is in receipt of a document from a producing party

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which the receiving party has reason to believe is privileged, the receiving

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party shall in good faith take reasonable steps to promptly notify the

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producing party of the production of that document so that the producing

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party may make a determination of whether it wishes to have the documents

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returned or destroyed pursuant to this Stipulation and Order.

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f.

The party returning the Identified Materials may move the Court for an order

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compelling production of some or all of the Identified Material returned or

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destroyed, but the basis for such motion may not be based on the fact or

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circumstances of the production.

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g.

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The disclosure of Identified Materials in this action is not a waiver of the
attorney-client privilege, work product doctrine or any other asserted privilege

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in any other federal or state proceeding, pursuant Rule 502(d), Federal Rules

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of Evidence.

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19.

No provision of this stipulated order shall constitute a concession by any party that

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any documents are subject to protection by the attorney-client privilege, the work product doctrine

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or any other potentially applicable privilege or doctrine. No provision of this stipulated order is

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intended to waive or limit in any way either party’s right to contest any privilege claims that may be

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asserted with respect to any of the documents produced except to the extent set forth herein.

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20.

In the event that a party produces a document without a confidentiality designation as

permitted by this Order, the following procedures shall apply:

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a.

The producing party shall, within fourteen (14) days of the discovery of the

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disclosure, notify the other party in writing. The party receiving such notice

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shall promptly destroy the document, including any copies it has, or return the

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document on request of the producing party. Within ten (10) days after such

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document is returned or its destruction certified, the producing party will

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produce a new version of any such document that was returned or destroyed,

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which will contain the appropriate confidentiality designation.

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b.

If the receiving party disputes the producing party’s claim of confidentiality,

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that party may move the Court to challenge the confidential designation in

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accordance with Paragraph 4 of this Order. If the receiving party elects to file

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such a motion, the receiving party may retain possession of the document, but

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shall treat it in accordance with the terms of the Protective Order pending

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resolution of the motion. If the receiving party's motion is denied, the parties

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shall promptly comply with Paragraph 18(a) of this Order.

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c.

The production of such document does not constitute a waiver of any claim of

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confidentiality as set forth in this order or any other matter in any other

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jurisdiction, unless otherwise ordered by the Court.

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21.

This Protective Order may not be waived, modified, abandoned or terminated, in

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whole or part, except by an instrument in writing signed by the parties. If any provision of this

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Protective Order shall be held invalid for any reason whatsoever, the remaining provisions shall not

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be affected thereby.

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22.

After termination of this litigation, the provisions of this Order shall continue to be

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binding.

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Protected Documents for enforcement of the provisions of this Order following termination of this

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litigation.

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23.

This Court retains and shall have jurisdiction over the parties and recipients of the

This Protective Order shall be binding upon the parties hereto, upon their attorneys,

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and upon the parties’ and their attorneys’ successors, executors, personal representatives,

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administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,

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independent contractors, or other persons or organizations over which they have control.

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Respectfully submitted,

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Dated: August 23, 2017

SHOOK, HARDY & BACON L.L.P.

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By:
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/s/ Joan R. Camagong_______
Amir Nassihi
Joan Camagong

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Attorneys for Defendant
FORD MOTOR COMPANY

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Dated: August 23 , 2017

LAW OFFICES OF MICHAEL COGAN
By:/s/ Michael Cogan (as authorized on 8/17/17)
Michael Cogan

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Attorneys for Plaintiff
DEREK RHOEHOUSE

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PURSUANT TO STIPULATION, IT IS SO ORDERED:

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DATED: 8/23/2017
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________________
/s/ John A. Mendez_____________
United States District Court Judge

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EXHIBIT A

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AFFIDAVIT OF _______________________________________, being duly sworn and

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personally appearing before the undersigned attesting officer, duly authorized by law to administer

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oaths, deposes and says that the within statements are true and correct:

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1.

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I have read the Stipulated Sharing and Non-Sharing Protective Order attached hereto, and I
understand its terms and meanings.

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2.

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I agree that my signature below submits me to the jurisdiction of the Eastern District of

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California, in the above captioned case and binds me to the provisions of the Stipulated Sharing and

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Non-Sharing Protective Order, including to all promises undertaken in the Order, as if originally

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agreed by me.

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Further Affiant sayeth not.

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This

day of

2017.

BY:

AFFIANT.

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SUBSCRIBED AND SWORN to before me

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this

day of

2017.

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NOTARY PUBLIC

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Name:
No.:
My Commission Expires:

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