Oliver v. Microsoft Corporation

Filing 45

STIPULATION AND PROTECTIVE ORDER. Signed by Judge Richard Seeborg on 9/24/12. (cl, COURT STAFF) (Filed on 9/24/2012)

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1 COUNSEL LISTED ON FOLLOWING PAGE 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 K. OLIVER, 13 14 15 Case No. CV 12 00943 RS Plaintiff, STIPULATION AND [PROPOSED] PROTECTIVE ORDER v. MICROSOFT CORPORATION AND DOES 1-25, INCLUSIVE, 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 2 3 4 5 6 KATHLEEN M. LUCAS (STATE BAR NO. 80339) SHAWNA B. CASEBIER (STATE BAR NO. 267782) THE LUCAS LAW FIRM 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: 415-402-0200 Facsimile: 415-402-0400 klucas@lucaslaw.net scasebier@lucaslaw.net Attorneys for Plaintiff K. OLIVER 7 8 9 10 11 12 13 14 15 16 LYNNE C. HERMLE (STATE BAR NO. 99779) JESSICA R. PERRY (STATE BAR NO. 209321) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, California 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 lchermle@orrick.com jperry@orrick.com BROOKE D. ARENA (STATE BAR NO. 238836) ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: 415-773-5700 Facsimile: 415-773-5759 barena@orrick.com 17 18 Attorneys for Defendant MICROSOFT CORPORATION 19 20 21 22 23 24 25 26 27 28 -2- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 STIPULATION 2 Defendant Microsoft Corporation, by and through its undersigned counsel, and Plaintiff 3 Kelly Oliver, by and through her undersigned counsel, hereby agree to the entry of the Protective 4 Order below. 5 ORDER 6 Pursuant to Fed. Rule Civ. Proc. 26(c) and the stipulation of the parties, the Court hereby 7 enters the following Protective Order. 8 A. 9 Scope of Protective Order 1. This Protective Order shall govern the use and disclosure of certain sensitive and 10 confidential information designated in good faith by a party to this litigation as being 11 “Confidential,” as set forth below, and which is contained in (a) any documents, written discovery 12 responses, or tangible evidence produced in this litigation by means of discovery and/or (b) any 13 transcripts of depositions taken in this action. This Protective Order establishes a procedure for 14 the expeditious handling of such Confidential information; it shall not be construed as an 15 agreement or as creating any presumption on the confidentiality of any document. 16 2. The attorneys of record, and all others to whom any such designated Confidential 17 information and material is disclosed, shall maintain such designated Confidential information 18 and material in strict confidence, shall not disclose such designated Confidential information and 19 material except in accordance with this Protective Order, and shall use such designated 20 Confidential information and material solely for this litigation. All produced Confidential 21 information and material shall be carefully maintained in secure facilities (such as law firm 22 offices), and access to such Confidential information and material shall be permitted only to 23 persons properly having access thereto under the terms of this Protective Order. 24 25 26 27 28 STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 2 B. Confidential Information or Material 3. Any party claiming that documents, written discovery responses, or tangible 3 evidence constitute or include Confidential information or material shall mark those portions of 4 the material considered in good faith to be confidential (in such manner as will not interfere with 5 the legibility thereof) with the legend: “Confidential.” Deposition testimony may be designated 6 as “Confidential” by invoking this Protective Order on the record with respect to specific 7 designated testimony, or by using the procedure described in Paragraph 5 of this section. 8 9 4. By designating material as Confidential, the parties and their counsel represent that they have a good faith belief that the materials so designated contain sensitive, non-public, 10 confidential information, such as (a) Plaintiff’s medical records; (b) either party’s accounting 11 information or tax records, or (c) Microsoft’s income statements, balance sheets, or documents 12 that otherwise describe, contain or disclose internal company information, including human 13 resources policies and other similar internal company policies; where all such information is not 14 readily ascertainable and which the party asserting confidentiality has taken reasonable steps to 15 maintain its confidentiality. 16 5. If depositions are conducted which involve confidential information, each party 17 shall have until thirty (30) days after receipt of the deposition transcript within which to inform 18 the other party of the portions of the transcript (by specific page and line reference) to be 19 designated Confidential. Prior to the expiration of the thirty (30) day period, the entire deposition 20 transcript shall be treated as Confidential information. 21 22 23 6. Confidential information or material (including any copies thereof, notes made therefrom, and the information contained therein) may be disclosed only to the following persons: 6.1 24 Authors, originators, or original recipients of the Confidential information or material. 25 6.2 The parties to this action. 26 6.3 Employees, officers and directors of a party to this action, to the extent 27 that such employees, officers and directors have a need to know the 28 Confidential information for the conduct of this litigation. -2- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 6.4 The attorneys of record in this litigation and their employees or contract 2 personnel retained by such attorneys’ offices (such as secretaries, legal 3 assistants, and document copying, coding, or imaging services) to whom 4 it is necessary to disclose such information or material in furtherance of 5 the prosecution or defense of this action, any insurance representative to 6 whom it is necessary to disclose such information or material, and any 7 mediator selected to mediate this matter; provided, however, that the 8 attorneys of record utilizing such personnel shall be responsible for 9 ensuring compliance with this Protective Order with respect to all such 10 11 contract personnel and third party vendors. 6.5 12 13 pleadings and other court papers and proceedings. 6.6 14 15 The Court and its personnel, as necessary in support of motions, Court reporters and their assistants, to the extent reasonably necessary for the reporting of depositions and hearings. 6.7 Non-party witnesses who, prior to receiving Confidential information, 16 have received a copy of this Protective Order and signed an agreement (in 17 substantially the form presented in Exhibit A hereto) to be bound by its 18 terms and to refrain from redistributing all such information. Such lay 19 witnesses shall have access to Confidential information only if the 20 disclosing party has a good faith belief disclosure is necessary and the 21 disclosure is only for purposes limited to participation in this litigation 22 (i.e., testimony, deposition preparation, interviews yielding affidavits or 23 declarations, etc.). 24 6.8 Experts retained by an attorney to whom disclosure may be made 25 pursuant to Paragraph 6.4, but only to the extent that the expert, prior to 26 receiving any Confidential information or material, has received a copy of 27 this Protective Order and signed an agreement (in substantially the form 28 presented in Exhibit A hereto) to be bound by its terms, including his/her -3- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 agreement not to divulge any Confidential information or material to any 2 other person, his/her agreement not to use any Confidential information 3 or material for any purpose other than this litigation, his/her consent to 4 the jurisdiction and contempt power of this Court with respect to the 5 enforcement of the order, and his/her agreement to return to the 6 disclosing attorney within twenty (20) days after termination of this 7 litigation (a) all documents and other material containing designated 8 Confidential information and material received by him/her and all copies 9 thereof and (b) all reports, correspondence and other tangible things in 10 his/her possession or control which contain, reference, or describe any 11 Confidential information, or material disclosed to such expert. 12 13 7. Nothing in this Protective Order shall be deemed to restrict in any manner the use by any party of its own documents, information, or material. 14 8. By agreeing to the entry of this Protective Order, neither party waives its or her 15 right to seek greater protection of documents, information, or things than the protection afforded 16 by this Protective Order. 17 C. 18 Filing Confidential Information or Material 9. Any party who wishes to file Confidential information or material will follow the 19 procedure set forth in Northern District of California Local Rule 79-5, including without 20 limitation Local Rule 79-5(d), which provides: “If a party wishes to file a document that has been 21 designated confidential by another party pursuant to a protective order, or if a party wishes to 22 refer in a memorandum or other filing to information so designated by another party, the 23 submitting party must file and serve an Administrative Motion for a sealing order and lodge the 24 document, memorandum or other filing in accordance with this rule. If only a portion of the 25 document, memorandum or other filing is sealable, the submitting party must also lodge with the 26 Court a redacted version of the document, memorandum or other filing to be placed in the public 27 record if the Court approves the requested sealing order. Within 7 days thereafter, the designating 28 party must file with the Court and serve a declaration establishing that the designated information -4- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 is sealable, and must lodge and serve a narrowly tailored proposed sealing order, or must 2 withdraw the designation of confidentiality. If the designating party does not file its responsive 3 declaration as required by this subsection, the document or proposed filing will be made part of 4 the public record.” 5 D. 6 Confidentiality Challenge 10. If a party challenges the confidential designation of any document or information, 7 it shall so notify the designating party in writing and provide that party thirty (30) calendar days 8 in which to consider the challenge. The parties agree that, during that period, they will make a 9 good faith effort to resolve any disputes concerning the treatment of Confidential information or 10 material. If the matter has not been resolved, the party advocating confidentiality must move for 11 such protection under Rule 26(c), or the designation shall be deemed abandoned. 12 E. 13 No Waiver of Privilege 11. To expedite the production of information, a party may inadvertently produce 14 documents that are privileged, including but not limited to documents protected by the attorney- 15 client privilege, work product doctrine, or mediation privilege (together, all inadvertently 16 produced documents shall be a “Privileged Document”). Pursuant to Fed. Rule of Evid. 502(b), 17 production of a Privileged Document shall not be deemed a waiver of any applicable privilege. 18 Upon discovery that a Privileged Document has been produced, the producing party shall 19 promptly notify counsel for the other party who shall promptly return the Privileged Document 20 and all copies of the Privileged Document. If a party contends that a Privileged Document has 21 been erroneously designated as such, the party will nevertheless return the Privileged Document 22 and all copies of the Privileged Document to the party asserting the privilege. The parties reserve 23 the right to contest any determination that a document is privileged or is otherwise protected from 24 disclosure. 25 F. 26 Termination 12. After the termination of this action, this Order shall continue to be binding upon 27 the parties hereto and upon all persons to whom Confidential information or materials has been 28 disclosed or communicated. -5- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 G. 2 Return of Documents 13. No later than sixty (60) days following the “conclusion of these proceedings” as 3 defined herein, counsel shall return all documents and materials designated as Confidential to 4 counsel for the other party, together with all abstracts, copies, and other documents containing 5 any information contained within the documents (except that counsel for each party may maintain 6 in its files copies of each document filed with the Court). Alternatively, the parties may agree 7 upon appropriate methods of destruction. “Conclusion of these proceedings” refers to the 8 conclusion of this matter by trial or settlement and, if concluded by trial, the exhaustion of 9 available appeals, or the running of time for taking such appeals, as provided by applicable law. 10 14. This Order does not preclude a party from retaining custody of its own 11 Confidential information or material at the “conclusion of these proceedings” as defined in 12 paragraph 13 when not commingled with confidential information of other persons or parties. 13 H. 14 Modification 15. This Order may be modified in the event that the parties agree in writing to a 15 modification of the provisions and such modification is approved by this Court, or upon either 16 party’s application to the Court for modification. 17 I. 18 Remedies 16. The parties expressly acknowledge and agree that all remedies under Fed. Rule 19 Civ. Proc. 37 will be available to the Court, in its discretion, to sanction any violation of this 20 Order. 21 J. 22 23 Retention of Jurisdiction 17. The parties and any other person subject to the terms of this Order agree that this Court has and retains jurisdiction during this action. 24 25 26 27 28 -6- STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 EXHIBIT A 2 AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER 3 I, ___________________________, hereby acknowledge that I have received a copy of 4 the Stipulation And Protective Order entered in the matter of K. Oliver v. Microsoft Corporation, 5 in the United States District Court for the Northern District of California, San Francisco Division, 6 Case No. CV 12-00943 RS. I have read and agree to be bound by all of the provisions of the 7 Stipulation And Protective Order. I agree (a) not to divulge any Confidential information or 8 material to any other person; and (b) not to use any Confidential information or material for any 9 purpose other than this litigation. In addition, I consent to the jurisdiction and contempt power of 10 the United States District Court for the Northern District of California, San Francisco Division, 11 with respect to the enforcement of the Stipulation And Protective Order. 12 DATED: ___________________, 2012 13 14 15 [Signature] 16 17 18 [Print Name] 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS] 1 Dated: September 19, 2012 2 KATHLEEN M. LUCAS SHAWNA B. CASEBIER THE LUCAS LAW FIRM 3 4 By: 5 6 Dated: September 19, 2012 7 /s/ Kathleen M. Lucas Kathleen M. Lucas Attorneys for Plaintiff K. Oliver LYNNE C. HERMLE JESSICA R. PERRY BROOKE D. ARENA ORRICK, HERRINGTON & SUTCLIFFE LLP 8 9 By: /s/ Lynne C. Hermle Lynne C. Hermle Attorneys for Defendant Microsoft Corporation 10 11 12 IT IS SO ORDERED. 13 9/24 Dated __________________, 2012. 14 15 16 The Honorable Richard Seeborg United States District Court Judge 17 18 19 20 21 22 23 24 25 26 27 28 OHSUSA:751006984.2 STIPULATION AND [PROPOSED] PROTECTIVE ORDER [CV 12 00943 RS]

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