Espineli et al v. Toyota Motor Sales, U.S.A., Inc. et al

Filing 68

STIPULATION and ORDER RE CONFIDENTIAL TREATMENT OF DISCOVERY MATERIALS signed by Magistrate Judge Carolyn K. Delaney on 8/1/2019. (Zignago, K.)

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SHOOK, HARDY & BACON L.L.P.
Amir Nassihi (SBN 235936)
One Montgomery, Suite 2600
San Francisco, California 94104
Telephone: [phone]
Facsimile: 415.391.0281
Email: [e-mail]
Attorney for Defendant
TOYOTA MOTOR SALES U.S.A., INC.
KERSHAW, COOK & TALLEY PC
William A. Kershaw (SBN 057486)
Stuart C. Talley (SBN 180374)
Ian J. Barlow (SBN 262213)
401 Watt Avenue
Sacramento, California 95864
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiffs and the putative Class

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MELINDA ESPINELI and MOHAMMAD
MOGHADDAM, as individuals and on behalf
of all others similarly situated,

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Plaintiffs,
vs.
TOYOTA MOTOR SALES U.S.A., INC., a
California corporation; TOYOTA MOTOR
CORPORATION, a Japanese Corporation; and
DOES 1 through 100, inclusive,

Case No. 2:17-cv-00698-KJM-CKD
Judge: Hon. Kimberly J. Mueller
STIPULATION AND ORDER RE
CONFIDENTIAL TREATMENT OF
DISCOVERY MATERIALS
Complaint Filed: Mar. 31, 2017

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Defendants.

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To expedite the flow of discovery material, facilitate the prompt resolution of disputes over

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confidentiality, adequately protect material entitled to be kept confidential, and ensure that
STIPULATION AND [PROPOSED] ORDER
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protection is afforded only to material so entitled, plaintiffs Melinda Espineli, et al. and defendant

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Toyota Motor Sales, U.S.A, Inc. (“Toyota”) (collectively, “Parties”), by and through their respective

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counsel, and pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, hereby stipulate and

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agree to the terms of this Stipulated Protective Order as follows:

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IT IS HEREBY STIPULATED, subject to the approval of the Court that:

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1.

APPLICABILITY OF THE PROTECTIVE ORDER.

This Stipulated Order

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Governing the Designation and Handling of Confidential Materials (hereinafter “Order”) shall

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govern for pre-trial purposes the handling of documents, depositions, deposition exhibits,

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interrogatory responses, responses to requests for admissions, responses to requests for production of

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documents, and all other discovery obtained pursuant to the Federal Rules of Civil Procedure by or

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from a Party in connection with the Action (this information hereinafter referred to as “Discovery

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Material”). All references to “Party,” “Receiving Party,” “Producing Party” or “Designating Party”

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throughout this Order are intended to include non-parties.

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2.

DESIGNATION OF MATERIAL AS “CONFIDENTIAL” OR “HIGHLY

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CONFIDENTIAL.” Any Producing Party may designate Discovery Material as “Confidential” or

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“Highly Confidential” under the terms of this Order if the Producing Party in good faith reasonably

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believes that such Discovery Material contains non-public, confidential, personal, proprietary or

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commercially sensitive information that requires protections provided in this Order (hereinafter

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referred to as “Confidential Material” or “Highly Confidential Material”). Any Discovery Material

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designated “Confidential” or “Highly Confidential” shall, prior to being designated as such, be

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reviewed by counsel for the Designating Party.

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a. “Confidential Material.” For purposes of this Order, information considered to be

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Confidential Material includes any information that a Party believes in good faith to

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be confidential or sensitive non-public information including, but not limited to, trade

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secrets, research, design, development, financial, technical, marketing, planning,

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personal, or commercial information, as such terms are used in Rule 26(c)(1)(G) of

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the Federal Rules of Civil Procedure and any applicable case law interpreting Rule

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26(c)(1)(G).
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b. “Highly Confidential Material.” For purposes of this Order, Highly Confidential

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Material shall include, but is not limited to, any Protected Data (defined below)

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and/or Confidential Materials as defined herein, which also includes non-public

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product design and testing information or extremely sensitive, highly confidential,

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non-public information, consisting either of trade secrets or proprietary or other

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highly confidential business, financial, regulatory, or strategic information (including

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information regarding business plans, technical data, and non-public designs), the

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disclosure of which would create a substantial risk of competitive or business injury

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to the Producing Party. Certain Protected Data may compel alternative or additional

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protections beyond those afforded Highly Confidential Material, in which event the

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parties shall meet and confer in good faith, and, if unsuccessful, shall move the Court

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for appropriate relief.

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c. Confidential Material and Highly Confidential Material are collectively defined as
“Covered Information.”

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3.

MARKING OF DOCUMENTS.

The designation of Discovery Material as

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Confidential Material or Highly Confidential Material or Protected Data for purposes of this Order

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shall be made in the following manner:

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a. TIFF Documents.

In the case of documents or other materials (apart from

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depositions or other pre-trial testimony), designation shall be made by affixing the

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legend “Confidential” or “Highly Confidential” to all pages in each document

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containing any Confidential Material or Highly Confidential Material, respectively.

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b. Native Documents. With respect to documents or materials containing Covered

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Information produced in Native Format, the Designating Party shall include the

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appropriate confidentiality designation in the filename.

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c. Designating Depositions. With respect to any deposition, confidential treatment may

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be invoked by designating specific pages and/or lines as “Confidential” or “Highly

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Confidential” on the record before the close of the deposition, or by serving such

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designations within 14 days after receipt of the transcript of the deposition in which
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the designations are made. All deposition transcripts shall be treated as Highly

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Confidential for 14 days following receipt of the transcript unless otherwise ordered

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by the Court or agreed to by the parties.

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d. Non-Written Materials. Any non-text Covered Information (e.g., videotape, audio

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tape, computer disk, etc.) may be designated as such by labeling the outside of such

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material as “Confidential” or “Highly Confidential.” If only a portion or portions of

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the information or item warrant protection, the Producing Party shall identify the

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protected portion(s).

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transcription or printout from any such designated non-written materials, the person

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who generates such “hard copy” transcription or printout shall take reasonable steps

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to maintain the confidentiality of such materials and properly identify and stamp each

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page of such material as “Confidential” or “Highly Confidential” consistent with the

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original designation by the Producing Party.

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4.

In the event a Receiving Party generates any “hard copy”

DISCLOSURE OF COVERED INFORMATION.

The failure to designate

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Covered Information does not constitute a waiver of such claim and may be remedied by prompt

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supplemental written notice upon discovery of the disclosure, with the effect that such Covered

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Information will be subject to the protections of this Order. The Receiving Party shall exercise good

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faith efforts to ensure that copies made of Covered Information produced to it, and copies made by

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others who obtained such Covered Information directly or indirectly from the Receiving Party, are

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treated in accordance with the provisions of this Order, to the same extent that the Covered

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Information had been marked with the appropriate confidentiality legend by the Producing Party.

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The Producing Party shall provide a replacement copy of the Covered Information with the

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appropriate “Confidential” designation no later than 10 days after providing the Receiving Party

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with notice of the inadvertently produced Covered Information.

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5.

MATERIALS PREPARED BASED UPON COVERED INFORMATION. Any

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notes, lists, memoranda, indices, compilations, or other materials prepared or based on an

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examination of Covered Information, that quote from or paraphrase Covered Information with such

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specificity that the Covered Information can be identified shall be accorded the same status of
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confidentiality as the underlying Covered Information from which they are made, shall be designated

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with the appropriate confidentiality legend, and shall be subject to all of the terms of this Protective

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Order.

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NOTICE TO NON-PARTIES. Any Party issuing a subpoena to a non-party shall

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enclose a copy of this Protective Order. Information produced by non-parties in connection with this

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litigation is protected by the remedies and relief provided by this Order. Otherwise, the non-party

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must promptly notify the issuing Party that the non-party does not need the protection of this

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Protective Order or wishes to seek different protection.

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7.

GOOD-FAITH BELIEF.

For purposes of this Order, the Party designating

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Discovery Material as “Confidential” or “Highly Confidential” (the “Designating Party”) bears the

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burden of establishing the appropriate designation of all such Discovery Material. The designation

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of any Discovery Material as “Confidential” or “Highly Confidential” pursuant to this Order shall

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constitute the verification by the Designating Party and its counsel that the material constitutes

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“Confidential” or “Highly Confidential” as defined above. Blanket designation of documents or

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information as “Confidential” or “Highly Confidential” without regard to the specific contents of

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each document or piece of information is prohibited and the Parties acknowledge that the protection

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this Order affords from public disclosure and use extends only to the limited information or items

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that are entitled to confidential treatment under the applicable legal principles.

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The Designating Party shall only designate as “Confidential” or “Highly Confidential” any

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Discovery Material that the Designating Party, believes, in good faith, contains Covered

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Information, as defined above.

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Indiscriminate designations are prohibited. If it comes to a Designating Party’s attention that

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information or items that it designated for protection do not qualify for protection, the Designating

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Party must promptly notify all other Parties that it is withdrawing the mistaken or improper

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designation.

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If at any time prior to the trial of this Action a Party realizes that previously produced

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Discovery Material should be designated as “Confidential” or “Highly Confidential” the Party

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should advise all other Parties in writing and the Designating Party must produce replacement
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documents or material with the appropriate “Confidential” or “Highly Confidential” designation as

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described above. The designated documents or material will thereafter be treated as “Confidential”

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or “Highly Confidential” pursuant to this Order. Upon receipt of such designation in writing and re-

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production of the material with the “Confidential” or “Highly Confidential” stamp, the Parties and

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other persons subject to this Order shall take reasonable and appropriate steps to notify any and all

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recipients of the Discovery Material about the protected status of the newly designated

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“Confidential” or “Highly Confidential” and to retrieve the newly designated “Confidential” or

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“Highly Confidential” from any person who is not permitted by this Order to have Confidential

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Information.

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9.

No Party receiving Covered Information shall be under any obligation to object to the

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designation of any document at the time such designation is made or at any time thereafter. No

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Party shall, by failure to object, be found to have acquiesced or agreed to such designation or be

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barred from objecting to such designation at any time.

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10.

PERSONS AUTHORIZED TO RECEIVE CONFIDENTIAL MATERIAL.

Confidential Material may be disclosed only to the following “Qualified Persons”:

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a. the Court, including attorneys, employees, judges, magistrates, secretaries, special

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masters, stenographic reporters, staff, transcribers and all other personnel necessary to

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assist the Court in its function, and the jury;

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b. mediators or other individuals engaged or consulted in settlement of all or part of this

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Action;

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c. the Parties;

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d. counsel of record for the Parties, including all partners, members, and associate

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attorneys of such counsel’s law firms who are assisting in the conduct of the Action,

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as well as any other counsel and support personnel of such counsel who may be

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assisting counsel of record for the parties in the conduct of the Action, and all clerks,

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employees, independent contractors, consultants, investigators, paralegals, assistants,

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secretaries, staff and stenographic, computer, audio-visual and clerical employees and

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agents thereof when operating under the supervision of such partners or associate
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attorneys;

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e. professional jury or trial consultants, mock jurors, and litigation support services,

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including outside copying services, court reporters, stenographers or companies

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engaged in the business of supporting computerized or electronic litigation discovery

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or trial preparation, retained by a Party or its counsel, provided that they execute

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Exhibit A as described in Paragraph 12 of this Order;

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f. any individual expert, consultant, or expert consulting firm retained by counsel of

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record in connection with this Action to the extent necessary for the individual expert,

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consultant, or expert consulting firm to prepare a written opinion, to prepare to testify,

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or to assist counsel of record in the prosecution or defense of this Action, provided,

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however, that: (i) the disclosure shall be made only to an individual expert,

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consultant, or to members, partners, employees or agents of an expert consulting firm

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as the expert consulting firm shall designate as the persons who will undertake the

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engagement on behalf of the expert consulting firm (the “Designated Expert

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Personnel”); (ii) the individual expert, consultant, or Designated Expert Personnel use

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the information solely in connection with this Action; (iii) the individual expert,

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consultant, and/or Designated Expert Personnel sign the written assurance attached on

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Exhibit A on behalf of any Designated Expert Personnel associated with that firm;

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and (iv) excluding any retention for this Action, the individual expert and each of the

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Designated Expert Personnel is neither a current nor former (within the past year

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from the date of this Order) employee of any party or any entity which directly

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competes with, or is a customer of or direct seller to Toyota; and (v) the terms of

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Paragraph 16 of this Order are met;

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g. any person (i) who created, authored, received or reviewed such Covered

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Information; (ii) is or was a custodian of the Covered Information; (iii) is identified

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on such Covered Information; or (iv) is or was an employee of the producing party

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and is reasonably believed to have knowledge of the matters in the Covered

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Information;
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h. auditors and insurers of the Parties; and

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i. any other person as may be designated by written agreement by the Producing Party

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or by order of the Court.
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PERSONS

AUTHORIZED

TO

RECEIVE

HIGHLY

CONFIDENTIAL

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MATERIAL.

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Confidential Material, Protected Data, or their contents may be disclosed, summarized, described, or

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otherwise communicated or made available in whole or in part only to the persons identified and

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conditions set forth in Paragraphs 10(a)-(f) and (i), and:

Except as specifically provided for in this or subsequent Court orders, Highly

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a. Members of the in-house legal departments for the parties or their parents or

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affiliates, including their paralegals, investigative, technical, secretarial, and clerical

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personnel who are engaged in assisting them in this Litigation; or

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b. Any person who created, authored, received or reviewed, possessed or knew of such

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Covered Information, is or was a custodian of the Covered Information, or is

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identified on such Covered Information, provided, however, that each such person

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given access to Covered Information shall be advised that such Information is being

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disclosed pursuant to, and is subject to, the terms of this Stipulation and Protective

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Order and that it may not be disclosed other than pursuant to its terms.

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12.

EXECUTING THE NON-DISCLOSURE AGREEMENT. Each person to whom

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Covered Information is disclosed, except the persons identified in ¶ 10 (a), (c)-(d), (g) and ¶ 11

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above, shall execute a non-disclosure agreement in the form annexed hereto as Exhibit A before

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receiving Covered Information. Copies of the executed Exhibit A shall be retained by counsel

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disclosing Covered Information to such person.

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13.

CHALLENGING “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL, AND

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“PROTECTED DATA” DESIGNATIONS. A Party objecting to the designation of any material

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as Confidential, Highly Confidential or Protected Data shall give written notice to the Designating

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Party. Upon receipt of the written objection, counsel for the Designating Party shall, within seven

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days, provide a written response to the objecting Party explaining the basis and supporting authority

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for the designation; otherwise the document(s) or material(s) shall be deemed to be no longer
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Confidential or Highly Confidential without a Court order. The Parties shall meet and confer in

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good faith to attempt to resolve the dispute without resort to Court intervention within 7 days of the

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date of service of the Designating Party’s written response.

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Designating Party cannot resolve their dispute through such meet and confer discussions, the

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Designating Party shall file and serve a motion to retain confidentiality under applicable local rules

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governing discovery disputes within 14 days of emailed notice from the objecting Party of its

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conclusion that the meet and confer process will not resolve their dispute.

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Designating Party to timely make such a motion shall automatically waive the confidentiality

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designation for each challenged designation. However, the Parties may meet and confer to agree on

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a later, mutually acceptable date of filing the motion, to accommodate the Parties’ schedules. In

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addition, the objecting Party may file a motion challenging a confidentiality designation at any time

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if there is good cause for doing so, including a challenge to the designation of a deposition transcript

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or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed by this paragraph.

If the objecting Party and the

Failure by the

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The Designating Party has the burden of establishing that the document is entitled to

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protection. Unless the Designating Party has waived the confidentiality designation as described

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above, any material so designated shall remain Confidential, Highly Confidential or Protected Data,

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and shall be subject to all of the restrictions on its disclosure and use set forth in this Order until such

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time as the Court may determine otherwise. In the event the Court rules that the challenged material

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is not Confidential or Highly Confidential, the Designating Party shall reproduce copies of all

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materials so designated without the Confidential or Highly Confidential label at the Designating

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Party’s expense within ten business days.

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14.

SUBPOENA FOR COVERED INFORMATION.

If any Party has obtained

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Covered Information under the terms of this Order and receives a request to produce such Covered

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Information by subpoena or other compulsory process commanding the production of such Covered

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Information, such Party shall promptly notify the Designating Party, including in such notice the

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date set for the production of such subpoenaed information, and not oppose any reasonable
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procedures sought to be pursued by the Designating Party whose Covered Information may be

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affected.

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USE OF DISCOVERY MATERIAL. Covered Information shall be used solely for

purposes of the Litigation, including any appeal.

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EXCLUSION OF INDIVIDUALS FROM DEPOSITIONS. Counsel shall have

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the right to exclude any person who is not authorized by this Order to receive documents or

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information designated as Covered Information from any deposition where testimony regarding

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Covered Information or the use of Covered Information is likely to arise.

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17.

SECURITY OF COVERED INFORMATION.

Any person in possession of

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another Party’s Covered Information shall exercise the same care with regard to the storage, custody,

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or use of Covered Information as they would apply to their own material of the same or comparable

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sensitivity. Receiving Parties must take reasonable precautions to protect Covered Information from

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loss, misuse and unauthorized access, disclosure, alteration and destruction including, but not limited

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to:

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a. Covered Information in electronic format shall be maintained in a secure litigation

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support site(s) that applies standard industry practices regarding data security

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including, but not limited to, application of access control rights to those persons

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entitled to access Covered Information under this Order;

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b. An audit trail of use and access to litigation support site(s) shall be maintained while
this Litigation, including any appeals, is pending;

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c. Any Covered Information downloaded from the litigation support site(s) in electronic

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format shall be stored only on device(s) (e.g. laptop, tablet, smartphone, thumb drive,

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portable hard drive) that are password protected and/or encrypted with access limited

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to persons entitled to access Covered Information under this Order. If the user is

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unable to password protect and/or encrypt the device, then the Covered Information

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shall be password protected and/or encrypted at the file level.

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d. Covered Information in paper format is to be maintained in a secure location with

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access limited to persons entitled to access Covered Information under this Order; and
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e. Summaries of Covered Information, including any lists, memorandum, indices or

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compilations prepared or based on an examination of Covered Information, that quote

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from or paraphrase Covered Information in a manner that enables it to be identified

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shall be accorded the same status of confidentiality as the underlying Covered

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Information.

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f. If the recipient of Covered Information is shipping data in electronic format, the

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recipient shall encrypt the data prior to shipping and provide the encryption key in

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separate correspondence. If hard copy documents are shipped, the Receiving Party

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will ship the documents using secure packaging tape via Federal Express or UPS and

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retain a tracking number for the materials. If the Receiving Party learns at any time

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that the Covered Information has been retrieved or viewed by unauthorized parties

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during shipment, it will immediately notify the Producing Party and take all

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reasonable measures to retrieve the improperly disclosed materials.

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If the Receiving Party discovers a breach of security1 relating to the Covered Information of

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a Producing Party, the Receiving Party shall: (1) provide written notice to the Producing Party of the

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breach within 48 hours of the Receiving Party’s discovery of the breach; (2) investigate and

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remediate the effects of the breach, and provide the Producing Party with assurance reasonably

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satisfactory to the Receiving Party that the breach shall not recur; and (3) provide sufficient

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information about the breach that the Producing Party can ascertain the size and scope of the breach.

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The Receiving Party agrees to cooperate with the Producing Party or law enforcement in

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investigating any such security incident.

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18.

FILING COVERED INFORMATION.

Without written permission from the

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Designating Party or a Court order secured after appropriate notice, a Party that seeks to file under

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seal any Covered Information (including deposition testimony, deposition exhibit, interrogatory,

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answer thereto, exhibit or attachment to an interrogatory or answer, request for production, response

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Breach is defined to include, but is not limited to, the confirmed or suspected: (i) disclosure or use
of Covered Information by or to an unauthorized person; and/or (ii) the loss, theft or hacking of a
device containing Covered Information.
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thereto, exhibit to a request for production or response, request for admission, response thereto,

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exhibit to a request for admission or response, motion, memorandum, affidavit, brief or any other

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submission by any party is filed with the Court which includes, incorporates or quotes

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“Confidential” or “Highly Confidential” information) must comply with Local Rule 141.

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19.

FINAL TERMINATION. After the conclusion of this litigation as to the

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Defendants, all “Confidential” or “Highly Confidential” information, all copies thereof, and all

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documents that contain or reflect “Confidential” or “Highly Confidential” information including, but

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not limited to any notes prepared by the parties receiving the “Confidential” or “Highly

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Confidential” information, counsel for such parties, or such parties’ experts, shall be returned to

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counsel for the producing Defendants and all electronic copies will be destroyed and deleted from

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any computers, hard drives, servers or cloud storage, except that counsel for each Party may

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maintain in its files, in continuing compliance with the terms of this Stipulation and Protective

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Order, all work product, and one copy of each pleading filed with the Court and one copy of

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each deposition together with the exhibits marked at the deposition. The party given the

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“Confidential” or “Highly Confidential” information will certify in writing that there is compliance

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with this paragraph. All “Confidential” or “Highly Confidential” information shall remain subject to

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the terms of this Stipulated Protective Order. The parties consent to the continuation of jurisdiction

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and venue of this Court to resolve any disputes arising from the treatment or disposition of

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“Confidential" or “Highly Confidential” information after conclusion of this litigation.

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20.

PROTECTIVE ORDER REMAINS IN FORCE.

This Protective Order shall

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remain in force and effect until modified, superseded, or terminated by consent of the Parties or by

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order of the Court made upon reasonable written notice. Unless otherwise ordered or agreed upon

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by the Parties, this Protective Order shall survive the termination of this Action. The Court retains

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jurisdiction even after termination of this Action to enforce this Protective Order and to make such

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amendments, modifications, deletions and additions to this Protective Order as the Court may from

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time to time deem appropriate.

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21.

MODIFYING THIS ORDER. Nothing in this Order shall be construed to prohibit

the Parties from agreeing to modify any provision of this Order or seeking relief from the Court.
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Nor shall anything in this Order or any Party’s compliance herewith be construed as a waiver of any

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Party’s rights under applicable law.

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The undersigned have discussed the terms of this Stipulation and are in agreement with the
terms contained herein.

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Dated: July 24, 2019

SHOOK HARDY & BACON L.L.P.

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By:

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/s/Amir Nassihi
Amir Nassihi
Attorney for Defendants
Toyota Motor Sales, U.S.A., Inc.

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Dated: July 24, 2019

KERSHAW, COOK & TALLEY PC

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By:

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/s/Ian J. Barlow
Ian J. Barlow
Attorneys for Plaintiffs and the Putative
Class

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IT IS SO ORDERED, with the following amendments and clarifications:

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1.

The parties shall comply with the provisions and procedures of Local Rules 140

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and 141 with respect to sealing or redaction requests. To the extent that the parties’ stipulation

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conflicts with the Local Rules, the Local Rules shall govern.
2.

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Prior to filing any motion related to this stipulated protective order or other

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discovery motion, the parties shall first exhaust informal meet-and-confer efforts and otherwise

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comply with Local Rule 251.
3.

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Nothing in this order limits the testimony of parties or non-parties, or the use of

certain documents, at any court hearing or trial—such determinations will only be made by the
court at the hearing or trial, or upon an appropriate motion.
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4.

Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over

enforcement of the terms of this stipulated protective order after the action is terminated.

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Dated: August 1, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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STIPULATION AND [PROPOSED] ORDER
2:17-CV-00698-KJM-CKD

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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[print or type full address], have read and understand the Stipulated Protective Order that was issued

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by

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[insert date] in the case of Melinda Espineli, et al. v. Toyota Motor Sales U.S.A., Inc., et al., case no.

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2:17-cv-00698-KJM-CKD.

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Stipulated Protective Order. In compliance with this Order, I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person or entity except

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the

United

States

District

Court

for

the

Eastern

District

of

California

on

I agree to comply with and to be bound by all the terms of this

in strict compliance with the provisions of this Order.

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Signed this ____ day of ________________, 20___, at ________________ [insert city and
state where sworn and signed].
Signature:

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STIPULATION AND [PROPOSED] ORDER
2:17-CV-00698-KJM-CKD