Payne v. Nissan North America, Inc.

Filing 12

STIPULATION and PROTECTIVE ORDER signed by Magistrate Judge Deborah Barnes on 09/08/23. (Licea Chavez, V)

Case 2:23-cv-00772-KJM-DB Document 12 Filed 09/11/23 Page 1 of 17
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Tionna Dolin (SBN 299010)
Email: [e-mail]
([e-mail])
Elizabeth A. LaRocque (SBN 219977)
Email: [e-mail]
STRATEGIC LEGAL PRACTICES, APC
1888 Century Park East, Floor 19
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys For Plaintiff
LAWRENCE PAYNE
AMIR NASSIHI (SBN 235936)
[e-mail]
JASON M. RICHARDSON (SBN 250916)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
555 Mission Street, Suite 2300
San Francisco, CA 94105
TEL: [phone] | FAX: [phone]
Attorneys for Defendant
NISSAN NORTH AMERICA, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE PAYNE,

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Plaintiff,

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vs.
NISSAN NORTH AMERICA, INC.,
and DOES 1 through 10, inclusive,
Defendants.

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1.

) Case No. 2:23-cv-00772-KJM-DB
)
) STIPULATED PROTECTIVE
) ORDER – DISCOVERY ONLY
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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve

production of confidential, proprietary, or private information for which special

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Case 2:23-cv-00772-KJM-DB Document 12 Filed 09/11/23 Page 2 of 17
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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it

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

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items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 141 sets forth the procedures that must

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be followed and the standards that will be applied when a party seeks permission

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from the court to file material under seal.

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2.

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DEFINITIONS
2.1 Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), including materials that

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contain trade secret or other confidential research, technical, cost, price,

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marketing, or other commercial information, which are, for competitive reasons,

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normally, kept confidential by the parties, as contemplated by Federal Rules of

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Civil Procedure 26(c)(1)(G).

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2.3 Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.5 Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and tangible

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things), that are produced or generated in disclosures or responses to discovery in

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this matter.

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2.6 Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel

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to serve as an expert witness or as a consultant in this action.

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2.7 House Counsel: attorneys who are employees of a party to this

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action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.8 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.

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2.9 Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action

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and have appeared in this action on behalf of that party or are affiliated with a

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law firm which has appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and

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their support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits

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or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover

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the following information: (a) any information that is in the public domain at the

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time of disclosure to a Receiving Party or becomes part of the public domain

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after its disclosure to a Receiving Party as a result of publication not involving a

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violation of this Order, including becoming part of the public record through trial

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or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality

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to the Designating Party. Any use of Protected Material at trial shall be governed

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by a separate agreement or order.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
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5.1 Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The Designating

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Party must designate for protection only those parts of material, documents,

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

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the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made for

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an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process or to impose unnecessary expenses and burdens on other

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parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that

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it designated for protection do not qualify for protection, that Designating Party

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

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designation.

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5.2 Manner and Timing of Designations. Except as otherwise provided

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in this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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

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is disclosed or produced.

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Designation in conformity with this Order requires:
(a) For information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to

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

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material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available

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

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

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party

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must affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of

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the deposition, hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information or

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item is stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone,

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waive the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with

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the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after

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the original designation is disclosed.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is

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challenging and describing the basis for each challenge. To avoid ambiguity as to

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whether a challenge has been made, the written notice must recite that the

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challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order. The parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring directly (in

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voice to voice dialogue; other forms of communication are not sufficient) within

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14 days of the date of service of notice. In conferring, the Challenging Party

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

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proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if

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it has engaged in this meet and confer process first or establishes that the

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Designating Party is unwilling to participate in the meet and confer process in a

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timely manner.

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6.3 Judicial Intervention. If the Parties cannot resolve a challenge

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without court intervention, the Designating Party shall file and serve a motion to

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retain confidentiality within 21 days of the initial notice of challenge or within

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14 days of the parties agreeing that the meet and confer process will not resolve

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their dispute, whichever is earlier. Each such motion must be accompanied by a

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

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confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration

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within 21 days (or 14 days, if applicable) shall automatically waive the

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confidentiality designation for each challenged designation. In addition, the

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Challenging Party may file a motion challenging a confidentiality designation at

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any time if there is good cause for doing so, including a challenge to the

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designation of a deposition transcript or any portions thereof. Any motion

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brought pursuant to this provision must be accompanied by a competent

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

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requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived the confidentiality designation by failing to file a motion to

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retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the

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Producing Party’s designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1 Basic Principles. A Receiving Party may use Protected Material that

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is disclosed or produced by another Party or by a Non-Party in connection with

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this case only for prosecuting, defending, or attempting to settle this litigation.
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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the litigation has been

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terminated, a Receiving Party must comply with the provisions of section 13 below

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(FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at

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a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order.
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party,

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a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as

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well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(f) during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information

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or a custodian or other person who otherwise possessed or knew the information.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in this

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action as “CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such
notification shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by

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the subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as “CONFIDENTIAL” before a determination by the court from

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which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material – and
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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by

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a Non-Party in this action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.
(b) In the event that a Party is required, by a valid discovery request,

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to produce a Non-Party’s confidential information in its possession, and the Party

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is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party.
(c) If the Non-Party fails to object or seek a protective order from

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this court within 14 days of receiving the notice and accompanying information,

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the Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before
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a determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use

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its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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

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the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as

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Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.

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12. MISCELLANEOUS

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12.1 Right to Further Relief. Nothing in this Order abridges the right of
any person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.
12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all

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interested persons, a Party may not file in the public record in this action any

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Protected Material. A Party that seeks to file under seal any Protected Material

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must comply with Local Rule 141. Protected Material may only be filed under

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seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. A sealing order will issue only upon a request establishing that

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the Protected Material at issue is privileged, protectable as a trade secret, or

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otherwise entitled to protection under the law. If a Receiving Party's request to

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file Protected Material under seal is denied by the court, then the Receiving Party

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may file the information in the public record unless otherwise instructed by the

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court.

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13. FINAL DISPOSITION

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Upon final termination of this action, including any and all appeals, counsel for

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each party must, upon request of the producing party, return all confidential

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information to the party that produced the information, including any copies,

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excerpts, and summaries of that information, or must destroy same at the option

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of the receiving party, and must purge all such information from all machine-

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readable media on which it resides. Notwithstanding the foregoing, counsel for

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each party may retain all pleadings, briefs, memoranda, motions, and other

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documents filed with the Court that refer to or incorporate confidential

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information, and will continue to be bound by this Order with respect to all such
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retained information. Further, attorney work product materials that contain

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confidential information need not be destroyed, but, if they are not destroyed, the

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person in possession of the attorney work product will continue to be bound by

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this Order with respect to all such retained information.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: September 6, 2023

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STRATEGIC LEGAL PRACTICES, A
By

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/s/ Elizabeth A. LaRocque
Elizabeth A. LaRocque
Attorneys for Plaintiff
LAWRENCE PAYNE
SHOOK HARDY & BACON LLP

Dated: September 6, 2023
By:

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/s/ Jason M. Richardson
Jason M. Richardson
Attorneys for Defendant
NISSAN NORTH AMERICA, INC.

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ORDER

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Pursuant to the parties’ stipulation, IT IS SO ORDERED.

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IT IS FURTHER ORDERED THAT:

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1. Requests to seal documents shall be made by motion before the same

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judge who will decide the matter related to that request to seal.

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2. The designation of documents (including transcripts of testimony) as

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confidential pursuant to this order does not automatically entitle the parties to file

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such a document with the court under seal. Parties are advised that any request to
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seal documents in this district is governed by Local Rule 141. In brief, Local Rule

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141 provides that documents may only be sealed by a written order of the court

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after a specific request to seal has been made. L.R. 141(a). However, a mere

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request to seal is not enough under the local rules. In particular, Local Rule 141(b)

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requires that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or

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other authority for sealing, the requested duration, the identity, by name or

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category, of persons to be permitted access to the document, and all relevant

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information.” L.R. 141(b).

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3. A request to seal material must normally meet the high threshold of

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showing that “compelling reasons” support secrecy; however, where the material

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is, at most, “tangentially related” to the merits of a case, the request to seal may be

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granted on a showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC,

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809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of

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Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).

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4. Nothing in this order shall limit the testimony of parties or non-parties, or

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the use of certain documents, at any court hearing or trial – such determinations

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will only be made by the court at the hearing or trial, or upon an appropriate

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motion.

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5. With respect to motions regarding any disputes concerning this protective

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order which the parties cannot informally resolve, the parties shall follow the

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procedures outlined in Local Rule 251. Absent a showing of good cause, the court

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will not hear discovery disputes on an ex parte basis or on shortened time.

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6. The parties may not modify the terms of this Protective Order without the

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court’s approval. If the parties agree to a potential modification, they shall submit

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a stipulation and proposed order for the court’s consideration.
7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over

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enforcement of the terms of this Protective Order after the action is terminated.

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-15STIPULATED PROTECTIVE ORDER

Case 2:23-cv-00772-KJM-DB Document 12 Filed 09/11/23 Page 16 of 17
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8. Any provision in the parties’ stipulation that is in conflict with anything

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in this order is hereby DISAPPROVED.

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DATED: September 8, 2023

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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-16STIPULATED PROTECTIVE ORDER

Case 2:23-cv-00772-KJM-DB Document 12 Filed 09/11/23 Page 17 of 17
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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], declare under penalty of perjury

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

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was issued by the United States District Court for the Eastern District of

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California on [

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AMERICA, INC., Case No. 2:23-cv-00772. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

] in the case of LAWRENCE PAYNE v. NISSAN NORTH

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acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of

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this Order.

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I further agree to submit to the jurisdiction of the United States District

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Court for the Eastern District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action.

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I hereby appoint __________________________ [print or type full name]

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of _______________________________________ [print or type full address

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and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: ___________________________

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Printed name: _______________________________

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Signature: __________________________________
-17STIPULATED PROTECTIVE ORDER