Hall v. Comcast Corporation et al
Filing
19
STIPULATED PROTECTIVE ORDER. Signed by Judge JEFFREY S. WHITE on 6/20/12. (jjoS, COURT STAFF) (Filed on 6/20/2012)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page1 of 18
1
2
3
4
5
6
LAFAYETTE & KUMAGAI LLP
GARY T. LAFAYETTE (State Bar No. 088666)
REBECCA K. KIMURA (State Bar No. 220420)
100 Spear Street, Suite 600
San Francisco, California 94105
Telephone: (415) 357-4600
Facsimile: (415) 357-4605
Attorneys for Defendant
Comcast Corporation and Comcast of
California / Colorado / Washington I, Inc.
11
TODD M. SCHNEIDER (State Bar No. 158253)
CAROLYN H. COTTRELL (State Bar No. 166977)
LEE B. SZOR (SBN 276381)
SCHNEIDER WALLACE
COTTRELL BRAYTON KONECKY LLP
180 Montgomery Street, Suite 2000
San Francisco, California 94104
Telephone: (415) 421-7100
Facsimile:
(415)-421-7105
12
Attorneys for Plaintiff Lynn Hall and the Putative Class
7
8
9
(415) 357-4600
(415) 357-4605
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
LAFAYETTE
ATTORNEYS AT LAW
LLP
10
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
16
17
LYNN HALL, individually and on behalf of
all others similarly situated,
Case No. C11-05174-JSW
[PROPOSED] STIPULATED
PROTECTIVE ORDER
18
Plaintiff,
19
20
21
22
23
vs.
COMCAST CORPORATION, COMCAST
OF CALIFORNIA / COLORADO / TEXAS /
WASHINGTON, INC., COMCAST OF
CALIFORNIA / COLORADO /
WASHINGTON I, INC. and DOES 1 to 50
24
25
Defendants.
26
27
28
1
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page2 of 18
confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the
12
(415) 357-4600
(415) 357-4605
set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file
11
FAX
confidential treatment under the applicable legal principles. The parties further acknowledge, as
10
, SUITE 600
, CALIFORNIA 94105
public disclosure and use extends only to the limited information or items that are entitled to
9
SPEAR STREET
protections on all disclosures or responses to discovery and that the protection it affords from
8
100
Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
7
SAN FRANCISCO
Accordingly, the parties hereby stipulate to and petition the court to enter the following
6
KUMAGAI
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
5
&
confidential, proprietary, or private information for which special protection from public
4
ATTORNEYS AT LAW
Disclosure and discovery activity in this action are likely to involve production of
3
LAFAYETTE
1.
2
LLP
1
procedures that must be followed and the standards that will be applied when a party seeks
13
permission from the court to file material under seal. The parties further acknowledge that this
14
Order does not compel or require any party to produce information that is protected from
15
disclosure by statute or law.
16
17
18
19
2.
PURPOSES AND LIMITATIONS
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 how
20
it is generated, stored or maintained) or tangible things that qualify for protection under Federal
21
Rule of Civil Procedure 26(c).
22
23
24
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 or
25
items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or
26
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
27
28
2.5
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including, among other
2
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page3 of 18
1
things, testimony, transcripts, and tangible things), that are produced or generated in disclosures
2
or responses to discovery in this matter.
3
2.6
Expert: a person with specialized knowledge or experience in a matter
4
pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert
5
witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a
6
Party’s competitor, and (3) at the time of retention, is not anticipated to become an employee of a
7
Party or of a Party’s competitor.
8
2.7
9
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of
be avoided by less restrictive means.
(415) 357-4600
(415) 357-4605
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
which to another Party or Non-Party would create a substantial risk of serious harm that could not
11
LLP
10
13
2.8
House Counsel does not include Outside Counsel of Record or any other outside counsel.
14
15
House Counsel: attorneys who are employees of a party to this action.
2.9
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
16
2.10
Outside Counsel of Record: attorneys who are not employees of a party to
17
this action but are retained to represent or advise a party to this action and have appeared in this
18
action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
19
that party.
20
2.11
Party: any party to this action, including all of its officers, directors,
21
employees, consultants, retained experts, and Outside Counsel of Record (and their support
22
staffs).
23
2.12
24
Discovery Material in this action.
25
2.13
Producing Party: a Party or Non-Party that produces Disclosure or
Professional Vendors: persons or entities that provide litigation support
26
services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
27
organizing, storing, or retrieving data in any form or medium) and their employees and
28
subcontractors.
3
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page4 of 18
1
2
2.14
Protected Material: any Disclosure or Discovery Material that is
3
designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
4
ONLY.”
5
6
2.15
Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
7
3.
8
The protections conferred by this Stipulation and Order cover not only Protected Material
9
(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
SCOPE
(415) 357-4600
(415) 357-4605
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
11
LLP
10
However, the protections conferred by this Stipulation and Order do not cover the following
13
information: (a) any information that is in the public domain at the time of disclosure to a
14
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
15
a result of publication not involving a violation of this Order, including becoming part of the
16
public record through trial or otherwise; and (b) any information known to the Receiving Party
17
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
18
obtained the information lawfully and under no obligation of confidentiality to the Designating
19
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
20
4.
21
Even after final disposition of this litigation, the confidentiality obligations imposed by
22
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
23
order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
24
claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
25
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
26
action, including the time limits for filing any motions or applications for extension of time
27
pursuant to applicable law.
28
//
DURATION
4
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page5 of 18
1
2
5. 1
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
3
Each Party or Non-Party that designates information or items for protection under this
4
Order must take care to limit any such designation to specific material that qualifies under the
5
appropriate standards. To the extent it is practical to do so, the Designating Party must designate
6
for protection only those parts of material, documents, items, or oral or written communications
7
that qualify – so that other portions of the material, documents, items, or communications for
8
which protection is not warranted are not swept unjustifiably within the ambit of this Order.
9
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
(415) 357-4600
(415) 357-4605
unnecessarily encumber or retard the case development process or to impose unnecessary
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
11
LLP
10
expenses and burdens on other parties) expose the Designating Party to sanctions.
13
If it comes to a Designating Party’s attention that information or items that it designated
14
for protection do not qualify for protection at all or do not qualify for the level of protection
15
initially asserted, that Designating Party must promptly notify all other parties that it is
16
withdrawing the mistaken designation.
17
5.2
Manner and Timing of Designations. Except as otherwise provided in this
18
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
19
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
20
designated before the material is disclosed or produced.
21
22
Designation in conformity with this Order requires:
(a)
for information in documentary form (e.g., paper or electronic
23
documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the
24
Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
25
ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only a portion or
26
portions of the material on a page qualifies for protection, the Producing Party also must clearly
27
identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must
28
specify, for each portion, the level of protection being asserted.
5
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page6 of 18
1
A Party or Non-Party that makes original documents or materials available for inspection
(415) 357-4600
(415) 357-4605
Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
12
FAX
Material. If only a portion or portions of the material on a page qualifies for protection, the
11
, SUITE 600
, CALIFORNIA 94105
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected
10
SPEAR STREET
Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
9
100
qualify for protection under this Order. Then, before producing the specified documents, the
8
SAN FRANCISCO
copied and produced, the Producing Party must determine which documents, or portions thereof,
7
KUMAGAI
ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
6
&
of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
5
ATTORNEYS AT LAW
material it would like copied and produced. During the inspection and before the designation, all
4
LAFAYETTE
need not designate them for protection until after the inspecting Party has indicated which
3
LLP
2
markings in the margins) and must specify, for each portion, the level of protection being
13
asserted.
14
(b)
for testimony given in deposition or in other pretrial or trial
15
proceedings, that the Designating Party identify on the record, before the close of the deposition,
16
hearing, or other proceeding, all protected testimony and specify the level of protection being
17
asserted. When it is impractical to identify separately each portion of testimony that is entitled to
18
protection and it appears that substantial portions of the testimony may qualify for protection, the
19
Designating Party may invoke on the record (before the deposition, hearing, or other proceeding
20
is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to
21
which protection is sought and to specify the level of protection being asserted. Only those
22
portions of the testimony that are appropriately designated for protection within the 21 days shall
23
be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
24
Party may specify, at the deposition or up to 21 days afterwards if that period is properly
25
invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY
26
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
27
28
Parties shall give the other parties notice if they reasonably expect a deposition, hearing
or other proceeding to include Protected Material so that the other parties can ensure that only
6
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page7 of 18
1
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
2
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
3
shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
4
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
5
Transcripts containing Protected Material shall have an obvious legend on the title page
6
that the transcript contains Protected Material, and the title page shall be followed by a list of all
7
pages (including line numbers as appropriate) that have been designated as Protected Material
8
and the level of protection being asserted by the Designating Party. The Designating Party shall
9
inform the court reporter of these requirements. Any transcript that is prepared before the
(415) 357-4600
(415) 357-4605
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
expiration of a 21-day period for designation shall be treated during that period as if it had been
11
LLP
10
otherwise agreed. After the expiration of that period, the transcript shall be treated only as
13
actually designated.
14
(c)
for information produced in some form other than documentary and
15
for any other tangible items, that the Producing Party affix in a prominent place on the exterior of
16
the container or containers in which the information or item is stored the legend
17
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. If only a
18
portion or portions of the information or item warrant protection, the Producing Party, to the
19
extent practicable, shall identify the protected portion(s) and specify the level of protection being
20
asserted.
21
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
22
failure to designate qualified information or items does not, standing alone, waive the
23
Designating Party’s right to secure protection under this Order for such material. Upon timely
24
correction of a designation, the Receiving Party must make reasonable efforts to assure that the
25
material is treated in accordance with the provisions of this Order.
26
27
28
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality and/or level of protection by providing written notice of each
7
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page8 of 18
1
designation it is challenging and describing the basis for each challenge within 45 days of the
2
Challenging Party's receipt of the information designated as "Confidential." To avoid ambiguity
3
as to whether a challenge has been made, the written notice must recite that the challenge to
4
confidentiality is being made in accordance with this specific paragraph of the Protective Order.
5
6.2
Meet and Confer. The parties shall attempt to resolve each challenge in
6
good faith and must begin the process by conferring directly (in voice to voice dialogue; other
7
forms of communication are not sufficient) within 14 days of the date of service of notice. In
8
conferring, the Challenging Party must explain the basis for its belief that the confidentiality
9
designation and/or level of designation was not proper and must give the Designating Party an
(415) 357-4600
(415) 357-4605
in designation or level of designation is offered, to explain the basis for the chosen designation or
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
opportunity to review the designated material, to reconsider the circumstances, and, if no change
11
LLP
10
level of designation. A Challenging Party may proceed to the next stage of the challenge process
13
only if it has engaged in this meet and confer process first or establishes that the Designating
14
Party is unwilling to participate in the meet and confer process in a timely manner.
15
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
16
court intervention, the Designating Party shall file and serve a motion to retain confidentiality
17
and/or level of designation under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-
18
5 and General Order 62, if applicable) within 21 days of the initial notice of challenge or within
19
14 days of the parties agreeing that the meet and confer process will not resolve their dispute,
20
whichever is earlier. Each such motion must be accompanied by a competent declaration
21
affirming that the movant has complied with the meet and confer requirements imposed in the
22
preceding paragraph. Failure by the Designating Party to make such a motion including the
23
required declaration within 21 days (or 14 days, if applicable) shall automatically waive the
24
confidentiality designation and/or level of designation for each challenged designation and/or
25
level of designation. In addition, the Challenging Party may file a motion challenging a
26
confidentiality designation or a level of designation if there is good cause for doing so, including
27
a challenge to the designation or level of designation of a deposition transcript or any portions
28
thereof. Any motion brought pursuant to this provision must be accompanied by a competent
8
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page9 of 18
1
declaration affirming that the movant has complied with the meet and confer requirements
2
imposed by the preceding paragraph.
3
The burden of persuasion in any such challenge proceeding shall be on the
4
Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass
5
or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
6
to sanctions. Unless the Designating Party has waived the confidentiality designation or level of
7
designation by failing to file a motion to retain confidentiality or the level of designation as
8
described above, all parties shall continue to afford the material in question the level of protection
9
to which it is entitled under the Producing Party’s designation until the court rules on the
10
(415) 357-4600
(415) 357-4605
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
LAFAYETTE
ATTORNEYS AT LAW
LLP
11
challenge.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
13
disclosed or produced by another Party or by a Non-Party in connection with this case only for
14
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
15
disclosed only to the categories of persons and under the conditions described in this Order.
16
When the litigation has been terminated, a Receiving Party must comply with the provisions of
17
section 13 below (FINAL DISPOSITION).
18
Protected Material must be stored and maintained by a Receiving Party at a location and
19
in a secure manner that ensures that access is limited to the persons authorized under this Order.
20
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
21
ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
22
disclose any information or item designated “CONFIDENTIAL” only to:
23
(a)
the Receiving Party’s Outside Counsel of Record in this action, as
24
well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
25
disclose the information for this litigation and who have signed the “Acknowledgment and
26
Agreement to Be Bound” that is attached hereto as Exhibit A;
27
28
(b)
the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
9
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page10 of 18
1
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
2
(c)
Experts (as defined in this Order) of the Receiving Party to whom
3
disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
4
and Agreement to Be Bound” (Exhibit A);
5
(d)
the court and its personnel;
6
(e)
court reporters and their staff, professional jury or trial consultants,
7
and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
8
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9
(f)
during their depositions, witnesses in the action to whom disclosure
(415) 357-4600
(415) 357-4605
Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
11
LLP
10
Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material
13
must be separately bound by the court reporter and may not be disclosed to anyone except as
14
permitted under this Stipulated Protective Order.
15
(g)
16
17
the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information.
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18
ONLY” Information or Items: Unless otherwise ordered by the court or permitted in writing by
19
the Designating Party, a Receiving Party may disclose any information or item designated
20
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
21
(a)
the Receiving Party’s Outside Counsel of Record in this action, as
22
well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
23
disclose the information for this litigation and who have signed the “Acknowledgment and
24
Agreement to Be Bound” that is attached hereto as Exhibit A;
25
(b)
Experts of the Receiving Party (1) to whom disclosure is
26
reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and
27
Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
28
7.4(a)(2), below, have been followed;
10
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page11 of 18
1
(c)
the court and its personnel;
2
(d)
court reporters and their staff, professional jury or trial consultants,
3
and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
4
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
5
6
(e)
a custodian or other person who otherwise possessed or knew the information.
7
8
the author or recipient of a document containing the information or
7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
9
(a)
Unless otherwise ordered by the court or agreed to in writing by the
(415) 357-4600
(415) 357-4605
information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
11
LLP
10
EYES ONLY pursuant to paragraph 7.2(c) first must make a written request to the Designating
13
Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’
14
EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert,
15
(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)
16
attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
17
identifies each person or entity from whom the Expert has received compensation or funding for
18
work in his or her areas of expertise or to whom the expert has provided professional services,
19
including in connection with a litigation, at any time during the preceding five years,1 and (6)
20
identifies (by name and number of the case, filing date, and location of court) any litigation in
21
connection with which the Expert has offered expert testimony, including through a declaration,
22
report, or testimony at a deposition or trial, during the preceding five years.2
23
(b)
A Party that makes a request and provides the information specified
24
25
26
27
28
1
If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the
Expert should provide whatever information the Expert believes can be disclosed without violating any
confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with
the Designating Party regarding any such engagement.
2
It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to
the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information.
11
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page12 of 18
1
in the preceding respective paragraph may disclose the subject Protected Material to the
2
identified Expert unless, within 14 days of delivering the request, the Party receives a written
3
objection from the Designating Party. Any such objection must set forth in detail the grounds on
4
which it is based.
5
(c)
A Party that receives a timely written objection must meet and
6
confer with the Designating Party (through direct voice to voice dialogue) to try to resolve the
7
matter by agreement within seven days of the written objection. If no agreement is reached, the
8
Party seeking to make the disclosure to the Expert may file a motion as provided in Civil Local
9
Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the
(415) 357-4600
(415) 357-4605
detail the reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
court to do so. Any such motion must describe the circumstances with specificity, set forth in
11
LLP
10
that the disclosure would entail, and suggest any additional means that could be used to reduce
13
that risk. In addition, any such motion must be accompanied by a competent declaration
14
describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the content
15
of the meet and confer discussions) and setting forth the reasons advanced by the Designating
16
Party for its refusal to approve the disclosure.
17
In any such proceeding, the Party opposing disclosure to the Expert shall
18
bear the burden of proving that the risk of harm that the disclosure would entail (under the
19
safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its
20
Expert.
21
22
23
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
24
disclosure of any information or items designated in this action as “CONFIDENTIAL” or
25
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
26
27
28
(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 order to
12
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page13 of 18
1
issue in the other litigation that some or all of the material covered by the subpoena or order is
2
subject to this Protective Order. Such notification shall include a copy of this Stipulated
3
Protective Order; and
4
5
(c)
cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
6
If the Designating Party timely seeks a protective order, the Party served with the
7
subpoena or court order shall not produce any information designated in this action as
8
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
9
determination by the court from which the subpoena or order issued, unless the Party has
(415) 357-4600
(415) 357-4605
expense of seeking protection in that court of its confidential material – and nothing in these
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
obtained the Designating Party’s permission. The Designating Party shall bear the burden and
11
LLP
10
provisions should be construed as authorizing or encouraging a Receiving Party in this action to
13
disobey a lawful directive from another court.
14
15
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
16
(a)
The terms of this Order are applicable to information produced by a Non-
17
Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
18
ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with
19
this litigation is protected by the remedies and relief provided by this Order. Nothing in these
20
provisions should be construed as prohibiting a Non-Party from seeking additional protections.
21
(b)
In the event that a Party is required, by a valid discovery request, to
22
produce a Non-Party’s confidential information in its possession, and the Party is subject to an
23
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
24
Party shall:
25
1.
promptly notify in writing the Requesting Party and the Non-Party
26
that some or all of the information requested is subject to a confidentiality agreement with a Non-
27
Party;
28
2.
promptly provide the Non-Party with a copy of the Stipulated
13
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page14 of 18
1
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
2
description of the information requested; and
3
4
3.
make the information requested available for inspection by the
Non-Party.
5
(c)
If the Non-Party fails to object or seek a protective order from this court
6
within 14 days of receiving the notice and accompanying information, the Receiving Party may
7
produce the Non-Party’s confidential information responsive to the discovery request. If the Non-
8
Party timely seeks a protective order, the Receiving Party shall not produce any information in its
9
possession or control that is subject to the confidentiality agreement with the Non-Party before a
burden and expense of seeking protection in this court of its Protected Material.
(415) 357-4600
(415) 357-4605
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
11
LLP
10
10.
13
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
14
Material to any person or in any circumstance not authorized under this Stipulated Protective
15
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
16
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
17
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
18
made of all the terms of this Order, and (d) request such person or persons to execute the
19
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
20
21
22
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
23
produced material is subject to a claim of privilege or other protection, the obligations of the
24
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
25
provision is not intended to modify whatever procedure may be established in an e-discovery
26
order that provides for production without prior privilege review. Pursuant to Federal Rule of
27
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
28
communication or information covered by the attorney-client privilege or work product
14
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page15 of 18
1
protection, the parties may incorporate their agreement in the stipulated protective order
2
submitted to the court.
3
12.
4
5
MISCELLANEOUS
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.
6
12.2
Right to Assert Other Objections. By stipulating to the entry of this
7
Protective Order no Party waives any right it otherwise would have to object to disclosing or
8
producing any information or item on any ground not addressed in this Stipulated Protective
9
Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
10
the material covered by this Protective Order.
12.3
Filing Protected Material. Without written permission from the
(415) 357-4600
(415) 357-4605
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
LAFAYETTE
ATTORNEYS AT LAW
LLP
11
Designating Party or a court order secured after appropriate notice to all interested persons, a
13
Party may not file in the public record in this action any Protected Material. A Party that seeks to
14
file under seal any Protected Material must comply with Civil Local Rule 79-5 and General
15
Order 62. Protected Material may only be filed under seal pursuant to a court order authorizing
16
the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and
17
General Order 62, a sealing order will issue only upon a request establishing that the Protected
18
Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection
19
under the law. If a Receiving Party's request to file Protected Material under seal pursuant to
20
Civil Local Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party
21
may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless
22
otherwise instructed by the court.
23
13.
24
Counsel shall keep a record of all copies of Protected Material distributed, in whole or in
25
part, to any Qualified Person. Within 60 days after the final disposition of this action, as defined
26
in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or
27
destroy such material. As used in this subdivision, “all Protected Material” includes all copies,
28
abstracts, compilations, summaries, and any other format reproducing or capturing any of the
FINAL DISPOSITION
15
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page16 of 18
1
Protected Material. The Receiving Party must submit a written certification to the Producing
2
Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that
3
(1) identifies (by category, where appropriate) all the Protected Material that was returned or
4
destroyed, and (2) affirms that the Receiving Party has not retained any copies, abstracts,
5
compilations, summaries or any other format reproducing or capturing any of the Protected
6
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
7
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
8
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
9
consultant and expert work product, even if such materials contain Protected Material. Any such
Order as set forth in Section 4 (DURATION).
(415) 357-4600
(415) 357-4605
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
100
SAN FRANCISCO
KUMAGAI
&
ATTORNEYS AT LAW
LAFAYETTE
archival copies that contain or constitute Protected Material remain subject to this Protective
11
LLP
10
13
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
14
15
DATED: June 20, 2012
/s/ Carolyn H. Cottrell
Attorneys for Plaintiff
DATED: June 20, 2012
/s/ Rebecca K. Kimura
Attorneys for Defendant
16
17
18
19
20
PURSUANT TO STIPULATION, IT IS SO ORDERED.
21
22
23
DATED: June 20, 2012
________________________
_____________________________________
Honorable Jeffrey S. White
United States District Judge
24
25
26
27
28
16
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Case3:11-cv-05174-JSW Document18 Filed06/20/12 Page17 of 18
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of _________________
(415) 357-4600
(415) 357-4605
Stipulated Protective Order to any person or entity except in strict compliance with the provisions
12
FAX
, SUITE 600
, CALIFORNIA 94105
SPEAR STREET
promise that I will not disclose in any manner any information or item that is subject to this
11
100
comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
10
SAN FRANCISCO
the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so
9
KUMAGAI
Corporation, et al., Case No. CV11--05174 JSW. I agree to comply with and to be bound by all
8
&
the Northern District of California on _________________ in the case of Lynn Hall v. Comcast
7
ATTORNEYS AT LAW
understand the Stipulated Protective Order that was issued by the United States District Court for
6
LAFAYETTE
[print or type full address], declare under penalty of perjury that I have read in its entirety and
5
LLP
4
of this Order.
13
I further agree to submit to the jurisdiction of the United States District Court for the
14
Northern District of California for the purpose of enforcing the terms of this Stipulated Protective
15
Order, even if such enforcement proceedings occur after termination of this action.
16
I hereby appoint __________________________ [print or type full name] of
17
_______________________________________ [print or type full address and telephone
18
number] as my California agent for service of process in connection with this action or any
19
proceedings related to enforcement of this Stipulated Protective Order.
20
21
Date: _________________________________
22
City and State where sworn and signed: _________________________________
23
Printed name: ______________________________
[printed name]
24
25
Signature: __________________________________
[signature]
26
27
28
17
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. C11-05174-JSW)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?