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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COUNSEL LISTED ON FOLLOWING PAGE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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K. OLIVER,

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Case No. CV 12 00943 RS
Plaintiff,

STIPULATION AND [PROPOSED]
PROTECTIVE ORDER

v.
MICROSOFT CORPORATION AND DOES
1-25, INCLUSIVE,

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Defendants.
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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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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
[e-mail]
[e-mail]
Attorneys for Plaintiff
K. OLIVER

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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
[e-mail]
[e-mail]
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
[e-mail]

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Attorneys for Defendant
MICROSOFT CORPORATION

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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STIPULATION

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Defendant Microsoft Corporation, by and through its undersigned counsel, and Plaintiff

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Kelly Oliver, by and through her undersigned counsel, hereby agree to the entry of the Protective

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Order below.

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ORDER

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Pursuant to Fed. Rule Civ. Proc. 26(c) and the stipulation of the parties, the Court hereby

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enters the following Protective Order.

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A.

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Scope of Protective Order
1.

This Protective Order shall govern the use and disclosure of certain sensitive and

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confidential information designated in good faith by a party to this litigation as being

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“Confidential,” as set forth below, and which is contained in (a) any documents, written discovery

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responses, or tangible evidence produced in this litigation by means of discovery and/or (b) any

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transcripts of depositions taken in this action. This Protective Order establishes a procedure for

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the expeditious handling of such Confidential information; it shall not be construed as an

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agreement or as creating any presumption on the confidentiality of any document.

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2.

The attorneys of record, and all others to whom any such designated Confidential

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information and material is disclosed, shall maintain such designated Confidential information

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and material in strict confidence, shall not disclose such designated Confidential information and

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material except in accordance with this Protective Order, and shall use such designated

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Confidential information and material solely for this litigation. All produced Confidential

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information and material shall be carefully maintained in secure facilities (such as law firm

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offices), and access to such Confidential information and material shall be permitted only to

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persons properly having access thereto under the terms of this Protective Order.

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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B.

Confidential Information or Material
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Any party claiming that documents, written discovery responses, or tangible

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evidence constitute or include Confidential information or material shall mark those portions of

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the material considered in good faith to be confidential (in such manner as will not interfere with

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the legibility thereof) with the legend: “Confidential.” Deposition testimony may be designated

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as “Confidential” by invoking this Protective Order on the record with respect to specific

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designated testimony, or by using the procedure described in Paragraph 5 of this section.

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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,

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confidential information, such as (a) Plaintiff’s medical records; (b) either party’s accounting

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information or tax records, or (c) Microsoft’s income statements, balance sheets, or documents

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that otherwise describe, contain or disclose internal company information, including human

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resources policies and other similar internal company policies; where all such information is not

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readily ascertainable and which the party asserting confidentiality has taken reasonable steps to

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maintain its confidentiality.

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5.

If depositions are conducted which involve confidential information, each party

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shall have until thirty (30) days after receipt of the deposition transcript within which to inform

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the other party of the portions of the transcript (by specific page and line reference) to be

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designated Confidential. Prior to the expiration of the thirty (30) day period, the entire deposition

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transcript shall be treated as Confidential information.

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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

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Authors, originators, or original recipients of the Confidential information
or material.

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6.2

The parties to this action.

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6.3

Employees, officers and directors of a party to this action, to the extent

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that such employees, officers and directors have a need to know the

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Confidential information for the conduct of this litigation.
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STIPULATION AND [PROPOSED] PROTECTIVE
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6.4

The attorneys of record in this litigation and their employees or contract

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personnel retained by such attorneys’ offices (such as secretaries, legal

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assistants, and document copying, coding, or imaging services) to whom

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it is necessary to disclose such information or material in furtherance of

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the prosecution or defense of this action, any insurance representative to

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whom it is necessary to disclose such information or material, and any

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mediator selected to mediate this matter; provided, however, that the

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attorneys of record utilizing such personnel shall be responsible for

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ensuring compliance with this Protective Order with respect to all such

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contract personnel and third party vendors.
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pleadings and other court papers and proceedings.
6.6

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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,

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have received a copy of this Protective Order and signed an agreement (in

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substantially the form presented in Exhibit A hereto) to be bound by its

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terms and to refrain from redistributing all such information. Such lay

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witnesses shall have access to Confidential information only if the

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disclosing party has a good faith belief disclosure is necessary and the

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disclosure is only for purposes limited to participation in this litigation

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(i.e., testimony, deposition preparation, interviews yielding affidavits or

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declarations, etc.).

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6.8

Experts retained by an attorney to whom disclosure may be made

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pursuant to Paragraph 6.4, but only to the extent that the expert, prior to

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receiving any Confidential information or material, has received a copy of

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this Protective Order and signed an agreement (in substantially the form

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presented in Exhibit A hereto) to be bound by its terms, including his/her
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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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agreement not to divulge any Confidential information or material to any

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other person, his/her agreement not to use any Confidential information

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or material for any purpose other than this litigation, his/her consent to

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the jurisdiction and contempt power of this Court with respect to the

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enforcement of the order, and his/her agreement to return to the

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disclosing attorney within twenty (20) days after termination of this

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litigation (a) all documents and other material containing designated

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Confidential information and material received by him/her and all copies

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thereof and (b) all reports, correspondence and other tangible things in

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his/her possession or control which contain, reference, or describe any

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Confidential information, or material disclosed to such expert.

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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.

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8.

By agreeing to the entry of this Protective Order, neither party waives its or her

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right to seek greater protection of documents, information, or things than the protection afforded

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by this Protective Order.

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C.

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Filing Confidential Information or Material
9.

Any party who wishes to file Confidential information or material will follow the

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procedure set forth in Northern District of California Local Rule 79-5, including without

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limitation Local Rule 79-5(d), which provides: “If a party wishes to file a document that has been

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designated confidential by another party pursuant to a protective order, or if a party wishes to

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refer in a memorandum or other filing to information so designated by another party, the

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submitting party must file and serve an Administrative Motion for a sealing order and lodge the

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document, memorandum or other filing in accordance with this rule. If only a portion of the

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document, memorandum or other filing is sealable, the submitting party must also lodge with the

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Court a redacted version of the document, memorandum or other filing to be placed in the public

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record if the Court approves the requested sealing order. Within 7 days thereafter, the designating

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party must file with the Court and serve a declaration establishing that the designated information
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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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is sealable, and must lodge and serve a narrowly tailored proposed sealing order, or must

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withdraw the designation of confidentiality. If the designating party does not file its responsive

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declaration as required by this subsection, the document or proposed filing will be made part of

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the public record.”

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D.

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Confidentiality Challenge
10.

If a party challenges the confidential designation of any document or information,

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it shall so notify the designating party in writing and provide that party thirty (30) calendar days

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in which to consider the challenge. The parties agree that, during that period, they will make a

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good faith effort to resolve any disputes concerning the treatment of Confidential information or

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material. If the matter has not been resolved, the party advocating confidentiality must move for

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such protection under Rule 26(c), or the designation shall be deemed abandoned.

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E.

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No Waiver of Privilege
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To expedite the production of information, a party may inadvertently produce

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documents that are privileged, including but not limited to documents protected by the attorney-

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client privilege, work product doctrine, or mediation privilege (together, all inadvertently

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produced documents shall be a “Privileged Document”). Pursuant to Fed. Rule of Evid. 502(b),

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production of a Privileged Document shall not be deemed a waiver of any applicable privilege.

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Upon discovery that a Privileged Document has been produced, the producing party shall

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promptly notify counsel for the other party who shall promptly return the Privileged Document

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and all copies of the Privileged Document. If a party contends that a Privileged Document has

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been erroneously designated as such, the party will nevertheless return the Privileged Document

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and all copies of the Privileged Document to the party asserting the privilege. The parties reserve

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the right to contest any determination that a document is privileged or is otherwise protected from

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disclosure.

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F.

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Termination
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After the termination of this action, this Order shall continue to be binding upon

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the parties hereto and upon all persons to whom Confidential information or materials has been

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disclosed or communicated.
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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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G.

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Return of Documents
13.

No later than sixty (60) days following the “conclusion of these proceedings” as

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defined herein, counsel shall return all documents and materials designated as Confidential to

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counsel for the other party, together with all abstracts, copies, and other documents containing

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any information contained within the documents (except that counsel for each party may maintain

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in its files copies of each document filed with the Court). Alternatively, the parties may agree

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upon appropriate methods of destruction. “Conclusion of these proceedings” refers to the

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conclusion of this matter by trial or settlement and, if concluded by trial, the exhaustion of

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available appeals, or the running of time for taking such appeals, as provided by applicable law.

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14.

This Order does not preclude a party from retaining custody of its own

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Confidential information or material at the “conclusion of these proceedings” as defined in

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paragraph 13 when not commingled with confidential information of other persons or parties.

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H.

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Modification
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This Order may be modified in the event that the parties agree in writing to a

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modification of the provisions and such modification is approved by this Court, or upon either

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party’s application to the Court for modification.

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I.

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Remedies
16.

The parties expressly acknowledge and agree that all remedies under Fed. Rule

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Civ. Proc. 37 will be available to the Court, in its discretion, to sanction any violation of this

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Order.

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J.

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Retention of Jurisdiction
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The parties and any other person subject to the terms of this Order agree that this

Court has and retains jurisdiction during this action.

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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EXHIBIT A

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AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

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I, ___________________________, hereby acknowledge that I have received a copy of

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the Stipulation And Protective Order entered in the matter of K. Oliver v. Microsoft Corporation,

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in the United States District Court for the Northern District of California, San Francisco Division,

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Case No. CV 12-00943 RS. I have read and agree to be bound by all of the provisions of the

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Stipulation And Protective Order. I agree (a) not to divulge any Confidential information or

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material to any other person; and (b) not to use any Confidential information or material for any

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purpose other than this litigation. In addition, I consent to the jurisdiction and contempt power of

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the United States District Court for the Northern District of California, San Francisco Division,

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with respect to the enforcement of the Stipulation And Protective Order.

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DATED: ___________________, 2012

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[Signature]

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[Print Name]

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STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]

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Dated: September 19, 2012
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KATHLEEN M. LUCAS
SHAWNA B. CASEBIER
THE LUCAS LAW FIRM

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By:

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Dated: September 19, 2012

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/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

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By:

/s/ Lynne C. Hermle
Lynne C. Hermle
Attorneys for Defendant Microsoft Corporation

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IT IS SO ORDERED.

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9/24
Dated __________________, 2012.

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The Honorable Richard Seeborg
United States District Court Judge

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OHSUSA:751006984.2

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER [CV 12 00943 RS]