Mostajo et al v. Nationwide Mutual Insurance Company

Filing 12

STIPULATED PROTECTIVE ORDER signed by District Judge John A. Mendez on 6/21/17. (Mena-Sanchez, L)

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1 2 3 ROBIN G. WORKMAN, Bar No. 145810 WORKMAN LAW FIRM, P.C. 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: 415.782.3660 Facsimile: 415.788.1028 4 5 Attorney for Plaintiffs ANTHONY MARC MOSTAJO and ELAINE QUEDENS 6 7 8 9 BARBARA A. BLACKBURN, Bar No. 253731 BRITNEY N. TORRES, Bar No. 287019 LITTLER MENDELSON, P.C. 500 Capitol Mall, Suite 2000 Sacramento, CA 95814 Telephone: 916.830.7200 Facsimile: 916.561.0828 10 11 12 13 14 15 16 RICHARD H. RAHM, Bar No. 130728 KAI-CHING CHA, Bar No. 218738 MICHAEL J. HUI, Bar No. 273212 LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: 415.433.1940 Facsimile: 415.399.8490 Attorneys for Defendant NATIONWIDE MUTUAL INSURANCE COMPANY 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 20 ANTHONY MARC MOSTAJO, and ELAINE QUEDENS, on behalf of himself and all others similarly situated, 23 24 25 STIPULATED PROTECTIVE ORDER AND FRE 502(D) AND (E) CLAWBACK ORDER Plaintiffs, 21 22 Case No. 2:17-CV-00350-JAM-AC v. NATIONWIDE MUTUAL INSURANCE COMPANY, and Does 1 through 50, inclusive, Defendants. 26 27 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC PROTECTIVE ORDER 1 WHEREAS, Plaintiffs Anthony Marc Mostajo and Elaine Quedens, on behalf of themselves 2 and all others similarly situated, and Defendant Nationwide Mutual Insurance Company 3 (collectively, the “Parties”) have agreed that the proceedings in the above-captioned matter may 4 involve the discovery and use of confidential, non-public, sensitive, and/or proprietary business, 5 employment, tax, financial, and personally identifiable information, documents and other materials; 6 WHEREAS, the Parties have agreed to produce such documents only on the agreement that 7 such “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” information or item will be 8 disclosed only as provided herein; 9 WHEREAS, the Parties have agreed to stipulate to protect certain privileged and otherwise 10 protected documents, data (including electronically stored information) and other information, 11 including without limitation, metadata (collectively “Documents”), against claims of waiver and 12 inadvertent production in the event they are produced during the course of this litigation whether 13 pursuant to a Court Order, a Parties’ discovery request or informal production; 14 WHEREAS, both Parties may be required to produce large volumes of Documents, the 15 Parties wish to comply with discovery deadlines and complete discovery as expeditiously as 16 possible, while preserving and without waiving any evidentiary protections or privileges applicable 17 to the information contained in the Documents produced, including as against third parties and other 18 Federal and State proceedings, and in addition to their agreement, need the additional protections of 19 a Court Order under FRE 502(d) and (e) to do so. 20 WHEREAS, in order to comply with applicable discovery deadlines, a party may be required 21 to produce certain categories of Documents that have been subject to minimal or no attorney review 22 (the “Disclosures”). This Stipulated Protective Order and Clawback Order (the “Order”) is designed 23 to foreclose any arguments that by making such Disclosures, the disclosure or production of 24 Documents subject to a legally recognized claim of privilege, including without limitation the 25 attorney-client privilege, work-product doctrine, or other applicable privilege: 26 (a) was not inadvertent by the Producing Party; 27 (b) that the Producing Party did not take reasonable steps to prevent the disclosure 28 of privileged Documents; LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 2. PROTECTIVE ORDER (c) 1 that the Producing Party did not take reasonable or timely steps to rectify such Disclosure; and/or 2 (d) 3 that such Disclosure acts as a waiver of applicable privileges or protections associated with such Documents. 4 5 WHEREAS, because the purpose of this Order is to protect and preserve privileged 6 Documents, the Parties agree they are bound as follows from and after the date their counsel have 7 signed it, even if such execution occurs prior to Court approval. 8 WHEREAS, the parties further acknowledge, as set forth in Section 9, below, that this 9 Stipulated Order does not entitle them to file confidential information under seal; Civil Local Rule 10 141 sets forth the procedures that must be followed and the standards that will be applied when a 11 party seeks permission from the court to file material under seal. 12 THEREFORE, the Parties seek the entry of the Order, pursuant to Federal Rule of Civil 13 Procedure 26(c), governing the disclosure of documents and information therein designated as 14 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” on the terms set forth herein, as 15 well as an Order, pursuant to FRE 502, governing the return of inadvertently produced documents 16 and data and affording them the protections of FRE 502(d) and (e), on the terms set forth herein. 17 THE PARTIES HEREBY STIPULATE AND AGREE AS FOLLOWS: 18 1. DEFINITIONS (a) 19 Party: any party to this action, including all of its officers, directors, 20 employees, agents, consultants, retained experts, in-house and outside counsel (and their support 21 staff). 22 (b) Disclosures or Discovery Material: all items or information, regardless of the 23 medium or manner generated, stored, or maintained (including, among other things, testimony, 24 transcripts, or tangible things) that are produced or generated in disclosures or responses to 25 discovery in this matter. 26 (c) “Confidential” Information or Items: information (regardless of how 27 generated, stored or maintained) that has not been made public or is not otherwise available or 28 accessible in the public domain and that concerns or relates to (1) the confidential or proprietary LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 3. PROTECTIVE ORDER 1 information of either Party or any third parties; (2) personal or private information regarding 2 Defendant’s current and former employees, including personnel documentation and compensation 3 information, for which the Parties or any third party have a duty to maintain confidentiality; and/or 4 (3) the manner in which Defendant conducts its business operations, which information is not made 5 known to the general public nor made available to Defendant’s competitors. Further, Confidential 6 Information also includes information for which disclosure is likely to have the effect of causing 7 harm to either Party, or person from whom the information was obtained, or to the Parties’ or third- 8 parties’ privacy. (d) 9 “Highly Confidential – Attorneys’ Eyes Only” Information or Items: 10 extremely sensitive “Confidential” Information or Items whose disclosure to another Party or 11 nonparty would create a substantial risk of serious injury that could not be avoided by less restrictive 12 means. 13 (e) 14 a Producing Party in this action. 15 (f) Producing Party: a Party that produces Disclosure or Discovery Material in (g) Designating Party: 16 17 Receiving Party: a Party that receives Disclosure or Discovery Material from this action. a Party that designates information or items that it 18 produces in disclosures or in responses to discovery as “Confidential” or “Highly Confidential – 19 Attorneys’ Eyes Only.” 20 21 22 23 (h) Protected Material: any Disclosure or Discovery Material that is designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only” pursuant to this Order. (i) Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 24 (j) House Counsel: attorneys who are employees of a Party. 25 (k) Counsel (without qualifier): Outside Counsel and House Counsel (as well as 26 27 28 their support staffs). (l) 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 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 4. PROTECTIVE ORDER 1 witness or as a consultant in this action and who is not a past or a current employee of a Party or of a 2 competitor of a Party and who, at the time of retention, is not anticipated to become an employee of 3 a Party or a competitor of a Party. This definition includes a professional jury or trial consultant 4 retained in connection with this litigation. (m) 5 Professional Vendors: persons or entities that provide litigation support 6 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 7 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 8 subcontractors. 9 2. SCOPE 10 The protections conferred by this Order cover not only Protected Material (as defined above), 11 but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or 12 compilations thereof, plus testimony, conversations, or presentations by Parties or Counsel to or in 13 Court or in other settings that might reveal Protected Material. 14 3. 15 Even after the termination of this litigation, the confidentiality obligations imposed by this 16 Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order 17 otherwise directs. 18 4. 19 DURATION DESIGNATING PROTECTED MATERIAL (a) Exercise of Restraint and Care in Designating Material for Protection. Each 20 Party or non-party that designates information or items for protection under this Order must take 21 care to limit any such designation to specific material that qualifies under appropriate standards. A 22 Designating Party must take care to designate for protection only those parts of material, documents, 23 items, or oral or written communications that qualify – so that other portions of the material 24 documents, items, or communications for which protection is not warranted are not swept 25 unjustifiably within the ambit of this Order. 26 If it comes to a Party’s attention that information or items that it designated for protection do 27 not qualify for protection at all, or do not qualify for the level of protection initially asserted, that 28 Party must promptly notify the other Party that it is withdrawing the mistaken designation. LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 5. PROTECTIVE ORDER (b) 1 Manner and Timing of Designations. Except as otherwise provided in this 2 Order (see, e.g., second paragraph of Paragraph 4(b)(i) below), or as otherwise stipulated or ordered, 3 material that qualifies for protection under this Order must be clearly so designated before the 4 material is disclosed or produced. 5 Designation in conformity with this Order requires: i. 6 Information in documentary form (apart from transcripts of 7 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each page 9 that contains protected material. If only a portion or portions of the material on a page qualifies for 10 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 11 appropriate markings in the margins) and must specify, for each portion, the level of protection 12 being asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY”). 14 In the event that a party makes documents available for inspection, rather than delivering 15 copies to another party, no marking need be made in advance of the initial inspection. For purposes 16 of the initial inspection, all documents produced shall be considered as marked “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Thereafter, upon the inspecting party’s 18 selection of documents for copying, the Producing Party may mark the copies “CONFIDENTIAL” 19 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” pursuant to this Order. 20 ii. Testimony given in deposition or in other pretrial or trial 21 proceedings, that the Party offering or sponsoring the testimony identify on the record, before the 22 close of the deposition, hearing, or other proceeding, all protected testimony, and further specify any 23 portions of the testimony that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 24 ONLY.” When it is impractical to identify separately each portion of testimony that is entitled to 25 protection, and when it appears that substantial portions of the testimony may qualify for protection, 26 the Party that sponsors, offers, or gives the testimony may invoke on the record (before the 27 deposition or proceeding is concluded) a right to have up to twenty-one (21) days after receipt of the 28 official transcript to identify the specific portions of the testimony as to which protection is sought LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 6. PROTECTIVE ORDER 1 and to specify the level of protection being asserted (“CONFIDENTIAL” or “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”). Only those portions of the testimony that are 3 appropriately designated for protection within the 21 days, as set forth above, shall be covered by the 4 provisions of this Stipulated Protective Order. Until the passage of the 21 days following receipt of 5 the official transcript, the entire transcript shall be treated as “CONFIDENTIAL” OR “HIGHLY 6 CONFIDENTIAL” pursuant to this Order. 7 Transcript pages containing Protected Material must be separately bound by the court 8 reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or “HIGHLY 9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party offering or 10 sponsoring the witness or presenting the testimony. iii. 11 Information produced in some form other than documentary, and 12 for any other tangible items, that the Producing Party affix in a prominent place on the exterior of 13 the container or containers in which the information or item is stored the legend “CONFIDENTIAL” 14 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the 15 information or item warrant protection, the Producing Party, to the extent practicable, shall identify 16 the protected portions, specifying whether they qualify as “CONFIDENTIAL” or as “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 18 (c) Inadvertent Failures to Designate. If timely corrected, an inadvertent failure 19 to designate qualified information or items as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 20 – ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating Party’s right to 21 secure protection under this Order for such material. If material is appropriately designated as 22 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” after the 23 material was initially produced, the Receiving Party, on timely notification of the designation, must 24 make reasonable efforts to assure that the material is treated in accordance with the provisions of this 25 Order from that point forward. The Designating Party may seek relief to address any situation where 26 the Receiving Party refuses, either directly or indirectly, to accord proper treatment of materials after 27 notice of an inadvertent failure to designate by the Designating Party. 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 7. PROTECTIVE ORDER 1 2 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS (a) Timing of Challenges. If the Receiving Party wishes to challenge the 3 Confidentiality Designation of a particular document or information, it must do so by letter or email 4 to Counsel for the Designating Party. 5 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 6 economic burdens, or a significant disruption or delay of the litigation, the Receiving Party does not 7 waive its right to challenge a confidentiality designation by electing not to mount a challenge 8 promptly after the original designation is disclosed. Until agreement is reached between Parties as to 9 a Confidentiality Designation or the Court rules on a judicial challenge to a Confidentiality 10 Designation pursuant to the procedures set forth in this paragraph 5, the document shall be treated as 11 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 12 this Agreement. 13 (b) Unless a prompt challenge to a Designating Party’s Meet and Confer. A Party that elects to initiate a challenge to a Designating 14 Party’s confidentiality designation must do so in good faith and must confer directly (in voice to 15 voice dialogue or via email or letter) with Counsel for the Designating Party. In conferring, the 16 challenging Party must explain the basis for its belief that the confidentiality designation was not 17 proper and must give the Designating Party an opportunity to review the designated material, to 18 reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the 19 chosen designation. A challenging Party may proceed to the next stage of the challenge process only 20 if it has engaged in this meet and confer process first. 21 (c) Judicial Intervention. A challenging Party that elects to press a challenge to a 22 confidentiality designation after considering the justification offered by the Designating Party shall, 23 within fourteen (14) days after the Parties agree that the meet and confer process will not resolve 24 their dispute, move the Court for an Order determining whether the item has been properly 25 designated as confidential, identifying the challenged material and setting forth in detail the basis for 26 the challenge. Each such motion must be accompanied by a competent declaration that affirms that 27 (1) the movant has complied with the meet and confer requirements imposed in the preceding 28 paragraph; (2) the material has been maintained as “CONFIDENTIAL” or “HIGHLY LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 8. PROTECTIVE ORDER 1 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” while the dispute is being resolved; and (3) sets 2 forth with specificity the justification for the confidentiality designation that was given by the 3 Designating Party during the meet and confer process. 4 The burden of persuasion in any such challenge proceeding shall be on the Designating 5 Party. Until the Court rules on the challenge, all Parties shall continue to afford the material in 6 question the level of protection to which it is entitled under the Producing Party’s designation. 7 6. ACCESS TO AND USE OF PROTECTED MATERIAL (a) 8 Basic Principles. A Receiving Party may use Protected Material that is 9 disclosed or produced by another Party in connection with this case only for prosecuting, defending, 10 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories 11 of persons and under the conditions described in this Order. When the litigation has been terminated, 12 a Receiving Party must comply with the provisions of Paragraph 10, below (FINAL 13 DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a 14 15 secure manner that ensures that access is limited to the persons authorized under this Order. (b) 16 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 17 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may 18 disclose any information or item designated CONFIDENTIAL only to: i. 19 the Receiving Party’s Outside Counsel of record in this action, as well 20 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 21 captioned action; ii. 22 23 the Parties (if an entity, this includes present and former officers, directors, agents and employees (including House Counsel)); iii. 24 Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this litigation and who have signed the “Agreement to Be 26 Bound by Protective Order” (Exhibit A); iv. 27 28 the Court and its personnel, subject to the procedures of Paragraph 9 below; LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 9. PROTECTIVE ORDER v. 1 2 court reporters, their staff, and professional vendors retained for purposes of this litigation; vi. 3 potential, anticipated or actual fact witnesses and their counsel to 4 whom disclosure is reasonably necessary and who have signed the “Agreement to Be Bound by 5 Protective Order” (Exhibit A) unless otherwise agreed by the Designating Party or ordered by the court; 6 and vii. 7 (c) 8 9 the author of the document or the original source of the information. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items. Unless otherwise ordered by the court or permitted in writing by the 10 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: i. 12 the Receiving Party’s Outside Counsel of record in this action, as well 13 as employees of said Outside Counsel engaged in the representation of the Parties in the above- 14 captioned action; 15 ii. House Counsel of the Receiving Party; 16 iii. Experts (as defined in this Order) of the Receiving Party (1) to whom 17 disclosure is reasonably necessary for this litigation, and (2) who have signed the “Agreement to Be 18 Bound by Protective Order” (Exhibit A); iv. 20 court reporters, their staff, and professional vendors retained for below; 21 22 the Court and its personnel, subject to the procedures of Paragraph 9 v. 19 purposes of this litigation; and vi. 23 the author of the document or the original source of the information. 24 25 26 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 27 If a Receiving Party is served with a subpoena or an order issued in other litigation that 28 would compel disclosure of any information or items designated in this action as LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 10. PROTECTIVE ORDER 1 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the 2 Receiving Party must so notify the Designating Party, in writing (by email or fax, if possible) 3 immediately and in no event more than three (3) court days after receiving the subpoena or order. 4 Such notification must include a copy of the subpoena or court order. The Receiving Party also must 5 immediately inform in writing the Party who caused the subpoena or order to issue in the other 6 litigation that some or all the material covered by the subpoena or order is the subject of this 7 Protective Order. In addition, the Receiving Party must deliver a copy of this Stipulated Protective 8 Order promptly to the Party in the other action that caused the subpoena or order to issue. Under no 9 circumstances shall the Receiving Party produce “CONFIDENTIAL” or “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” absent a specific Order by the Court after an 11 appropriate Motion to Quash and/or Compel has been filed. 12 The purpose of imposing these duties is to alert the interested parties to the existence of this 13 Protective Order and to afford the Designating Party in this case an opportunity to try to protect its 14 confidentiality interests in the court from which the subpoena or order issued. The Designating Party 15 shall bear the burdens and the expenses of seeking protection in that court of its confidential material 16 – and nothing in these provisions should be construed as authorizing or encouraging a Receiving 17 Party in this action to disobey a lawful directive from another court. 18 8. 19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 20 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 21 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 22 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 23 person or persons to whom unauthorized disclosures were made of all the terms of this Order, and 24 (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 25 that is attached hereto as Exhibit A. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 26 9. 27 All documents containing “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 28 ATTORNEYS’ EYES ONLY” information that are filed with the Court in this action shall, as FILING PROTECTED MATERIAL LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 11. PROTECTIVE ORDER 1 permitted by the Court, be sealed and designated with the appropriate Confidentiality Designation, 2 along with a notation that the contents subject to a Protective Order and are not to be revealed except 3 by further Order of the Court. A Party that seeks to file under seal any Protected Material must 4 comply with Civil Local Rule 141. 5 10. 6 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) days 7 after the final termination of this action (including any appeals), each Receiving Party must either: 8 1) return all Protected Material to the Producing Party; 2) or destroy all Protected Material, as 9 directed in writing by the Producing Party. As used in this subdivision, “all Protected Material” 10 includes all copies, abstracts, compilations, summaries or any other form of reproducing or capturing 11 any of the Protected Material. 12 Receiving Party must submit a written certification to the Producing Party (and, if not the same 13 person or entity, to the Designating Party) by the sixty (60) day deadline that identifies (by category, 14 where appropriate) all the Protected Material that was returned or destroyed and that affirms that the 15 Receiving Party has not retained any copies, abstracts, compilations, summaries or other forms of 16 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 17 entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, 18 correspondence or attorney work product, even if such materials contain Protected Material. Any 19 such archival copies that contain or constitute Protected Material remain subject to this Protective 20 Order as set forth in Paragraph 3 (DURATION), above. FINAL DISPOSITION Whether the Protected Material is returned or destroyed, the 21 11. 22 Pursuant to FRE 502(d) and (e), the Parties agree to and the Court orders protection of 23 privileged and otherwise protected Documents against claims of waiver (including as against third 24 parties and in other federal and state proceedings) as follows: 25 CLAWBACK AGREEMENT (a) The disclosure or production of Documents by a Producing Party subject to 26 the attorney-client privilege and/or the work-product doctrine, to a Receiving Party, shall in no way 27 constitute the voluntary disclosure of such Document. 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 12. PROTECTIVE ORDER 1 (b) The inadvertent disclosure or production of any Document in this action shall 2 not result in the waiver of the attorney-client privilege and/or work-product doctrine associated with 3 such Document as to the Receiving Party or any third parties, and shall not result in any waiver, 4 including subject matter waiver, of any kind. 5 (c) If, during the course of this litigation, a party determines that any Document 6 produced by another party is or may reasonably be subject to the attorney-client privilege and/or 7 work product doctrine (“Protected Document”): 8 i. the Receiving Party shall: (A) refrain from reading the Protected 9 Document any more closely than is necessary to ascertain that it is privileged or otherwise protected 10 from disclosure; (B) immediately notify the Producing Party in writing that it has discovered 11 Documents believed to be privileged or protected; (C) specifically identify the Protected Documents 12 by Bates number range or hash value, and, (D) within ten (10) days of discovery by the Receiving 13 Party, return, sequester, or destroy all copies of such Protected Documents, along with any notes, 14 abstracts or compilations of the content thereof. To the extent that a Protected Document has been 15 loaded into a litigation review database under the control of the Receiving Party, the Receiving Party 16 shall have all electronic copies of the Protected Document extracted from the database. Where such 17 Protected Documents cannot be destroyed or separated, they shall not be reviewed, disclosed, or 18 otherwise used by the Receiving Party. Notwithstanding, the Receiving Party is under no obligation 19 to search or review the Producing Party’s Documents to identify potentially privileged or work 20 product Protected Documents. 21 ii. If the Producing Party intends to assert a claim of attorney-client 22 privilege and/or work product over Documents identified by the Receiving Party as Protected 23 Documents, the Producing Party will, within ten (10) days of receiving the Receiving Party’s written 24 notification described above, inform the Receiving Party of such intention in writing and shall 25 provide the Receiving Party with a log for such Protected Documents that is consistent with the 26 requirements of the Federal Rules of Civil Procedure, setting forth the basis for the claim of 27 privilege or other protection. In the event that any portion of a Protected Document does not contain 28 privileged or protected information, the Producing Party shall also provide to the Receiving Party a LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 13. PROTECTIVE ORDER 1 redacted copy of the document that omits the information that the Producing Party believes is subject 2 to a claim of privilege or other protection. 3 4 (d) If, during the course of this litigation, a party determines it has produced a Protected Document: i. 5 the Producing Party may notify the Receiving Party of such 6 inadvertent production in writing, and demand the return of such documents. Such notice shall be in 7 writing, however, it may be delivered orally on the record at a deposition, promptly followed up in 8 writing. The Producing Party’s written notice will identify the Protected Document inadvertently 9 produced by bates number range or hash value, the privilege or protection claimed, and the basis for 10 the assertion of the privilege and shall provide the Receiving Party with a log for such Protected 11 Documents that is consistent with the requirements of the Federal Rules of Civil Procedure, setting 12 forth the basis for the claim of privilege or other protection. In the event that any portion of the 13 Protected Document does not contain privileged or protected information, the Producing Party shall 14 also provide to the Receiving Party a redacted copy of the Document that omits the information that 15 the Producing Party believes is subject to a claim of privilege or other protection. ii. 16 The Receiving Party must, within ten (10) days of receiving the 17 Producing Party’s written notification described above, return, sequester, or destroy the Protected 18 Document and any copies, along with any notes, abstracts or compilations of the content thereof. To 19 the extent that a Protected Document has been loaded into a litigation review database under the 20 control of the Receiving Party, the Receiving Party shall have all electronic copies of the Protected 21 Document extracted from the database. 22 (e) To the extent that the information contained in a Protected Document has 23 already been used in or described in other documents generated or maintained by the Receiving 24 Party prior to the date of receipt of written notice by the Producing Party as set forth in paragraphs 25 11(c)(ii) and 11(d)(i), then the Receiving Party shall sequester such documents until the claim has 26 been resolved. If the Receiving Party disclosed the Protected Document before being notified of its 27 inadvertent production, it must take reasonable steps to retrieve it. 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 14. PROTECTIVE ORDER (f) 1 The Receiving Party’s return, sequestering or destruction of Protected 2 Documents as provided herein will not act as a waiver of the Requesting Party’s right to move for 3 the production of the returned, sequestered or destroyed documents on the grounds that the 4 documents are not, in fact, subject to a viable claim of privilege or protection. However, the 5 Receiving Party is prohibited and estopped from arguing that: i. 6 7 the disclosure or production of the Protected Documents acts as a waiver of an applicable privilege or evidentiary protection; 8 ii. the disclosure of the Protected Documents was not inadvertent; 9 iii. the Producing Party did not take reasonable steps to prevent the 10 disclosure of the Protected Documents; or iv. 11 12 the Producing Party failed to take reasonable or timely steps to rectify the error pursuant to Federal Rule of Civil Procedure 26(b)(5)(B), or otherwise. (g) 13 Either party may submit Protected Documents to the Court under seal for a 14 determination of the claim of privilege or other protection. The Producing Party shall preserve the 15 Protected Documents until such claim is resolved. The Receiving Party may not use the Protected 16 Documents for any purpose absent this Court’s order. (h) 17 Upon a determination by the Court that the Protected Documents are protected 18 by the applicable privilege or evidentiary protection, and if the Protected Documents have been 19 sequestered rather than returned or destroyed by the Receiving Party, the Protected Documents shall 20 be returned or destroyed within 10 (ten) days of the Court’s order. The Court may also order the 21 identification by the Receiving Party of Protected Documents by search terms or other means. (i) 22 Nothing contained herein is intended to, or shall serve to limit a party’s right 23 to conduct a review of documents, data (including electronically stored information) and other 24 information, including without limitation, metadata, for relevance, responsiveness and/or the 25 segregation of privileged and/or protected information before such information is produced to 26 another party. 27 28 (j) By operation of the Parties’ agreement and Court Order, the Parties are specifically afforded the protections of FRE 502 (d) and (e). LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 15. PROTECTIVE ORDER 1 2 3 4 12. MISCELLANEOUS (a) Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. (b) Right to Assert Other Objections. By stipulating to the entry of this Order, no 5 Party waives any right it otherwise would have to object to disclosing or producing any information 6 or item on any ground not addressed in this Order. Similarly, no Party waives any right to object on 7 any ground to use in evidence of any of the material covered by this Order. 8 9 10 (c) Once executed by the Parties, the Stipulation shall be by treated by the Parties as an Order of Court until it is formally approved by the Court. IT IS SO STIPULATED. Dated: 6/21/2017 /s/ RICHARD H. RAHM KAI-CHING CHA LITTLER MENDELSON, P.C. Attorneys for Defendant NATIONWIDE MUTUAL INSURANCE COMPANY Date: 6/21/2017 11 /s/ ROBIN G. WORKMAN WORKMAN LAW FIRM, P.C. Attorneys for Plaintiffs ANTHONY MARC MOSTAJO and ELAINE QUEDENS 12 13 14 15 16 17 18 19 20 IT IS SO ORDERED. 21 Dated: 6/21/2017 /s/ John A. Mendez________________________ HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE Case No. 2:17-CV-00350-JAM-AC 16. 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 PROTECTIVE ORDER 1 EXHIBIT A 2 DECLARATION 3 I declare as follows: 4 1. My name is _________________________________________________________. 5 I live at__________________________________________________________________________. 6 I am employed as _________________________________________________________________. (state position) by ______________________________________________________________________________. (state name and address of employer) 7 8 2. 9 I am aware that the parties have stipulated to an Order limiting disclosure and use of 10 the Confidential information and documents produced by the parties in the matter of Anthony Marc 11 Mostajo, et al. v. Nationwide Mutual Insurance Company, Docket No. 2:17-CV-00350-JAM-AC, 12 pending before the United States District Court, Eastern District of California. A copy of the Order 13 has been given to me. 3. 14 I promise that documents and information designated as “Confidential” under the 15 Order will be used by me only in testifying and/or assisting counsel in preparing for and 16 participating in the above-referenced litigation and not for any business, personal or other purposes 17 whatsoever. I declare under penalty of perjury that the foregoing is true and correct. 18 19 20 Dated: (signature) 21 22 23 24 Firmwide:147178112.5 092236.1002 25 26 27 28 LITTLER MENDELSON, P.C. 333 BUSH STREET 34TH FLOOR SAN FRANCISCO, CA 94104 415.433.1940 Case No. 2:17-CV-00350-JAM-AC 17. PROTECTIVE ORDER

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