Pacatte Construction Company, Inc. v. AMCO Insurance Company et al

Filing 30

ORDER granting 29 STIPULATION RE: STIPULATED PROTECTIVE ORDER. Signed by Judge JEFFREY S. WHITE on 1/2/13. (jjoS, COURT STAFF) (Filed on 1/2/2013)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page1 of 19

1
2
3
4
5
6
7

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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
AMCO INSURANCE COMPANY

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

LLP

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

CASE NO. C 12-01472 JSW

11

PACATTE CONSTRUCTION COMPANY,
INC.,
Plaintiff,

[PROPOSED] STIPULATED
PROTECTIVE ORDER

13
14
15
16

Courtroom: Courtroom 11
Judge:
Hon. Jeffrey S. White

v.
AMCO INSURANCE COMPANY, a
corporation, GREAT AMERICAN
ASSURANCE COMPANY, a corporation; and
DOES 1 through V, inclusive,

17

Defendants.

18
19

1.

20

Disclosure and discovery activity in this action are likely to involve production of

21

confidential, proprietary, or private information for which special protection from public

22

disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

23

Accordingly, the parties hereby stipulate to and petition the court to enter the following

24

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

25

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

26

public disclosure and use extends only to the limited information or items that are entitled to

27

confidential treatment under the applicable legal principles. The parties further acknowledge, as

28

set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

PURPOSES AND LIMITATIONS

1
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page2 of 19

1

confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the

2

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

3

permission from the court to file material under seal. The parties further acknowledge that this

4

Order does not compel or require any party to produce information that is protected from

5

disclosure by statute or law.

6
7
8
9

2.

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

Rule of Civil Procedure 26(c).

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

it is generated, stored or maintained) or tangible things that qualify for protection under Federal

11
LLP

10

13
14

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

15

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or

16

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

17

2.5

Disclosure or Discovery Material: all items or information, regardless of

18

the medium or manner in which it is generated, stored, or maintained (including, among other

19

things, testimony, transcripts, and tangible things), that are produced or generated in disclosures

20

or responses to discovery in this matter.

21

2.6

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

22

pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert

23

witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a

24

Party’s competitor, and (3) at the time of retention, is not anticipated to become an employee of a

25

Party or of a Party’s competitor.

26

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

27

Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of

28

which to another Party or Non-Party would create a substantial risk of serious harm that could not
2
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page3 of 19

1

be avoided by less restrictive means.

2
3

2.8

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

4
5

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.

6

2.10

Outside Counsel of Record: attorneys who are not employees of a party to

7

this action but are retained to represent or advise a party to this action and have appeared in this

8

action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

9

that party.

10

2.11

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

[phone]
[phone]

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

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

staffs).

13

2.12

14

Discovery Material in this action.

15

2.13

Producing Party: a Party or Non-Party that produces Disclosure or

Professional Vendors: persons or entities that provide litigation support

16

services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

17

organizing, storing, or retrieving data in any form or medium) and their employees and

18

subcontractors.

19
20

2.14

Protected Material: any Disclosure or Discovery Material that is

21

designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

22

ONLY.”

23
24

2.15

Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.

25

3.

26

The protections conferred by this Stipulation and Order cover not only Protected Material

27

(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

28

all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

SCOPE

3
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page4 of 19

1

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

2

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

3

information: (a) any information that is in the public domain at the time of disclosure to a

4

Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

5

a result of publication not involving a violation of this Order, including becoming part of the

6

public record through trial or otherwise; and (b) any information known to the Receiving Party

7

prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

8

obtained the information lawfully and under no obligation of confidentiality to the Designating

9

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

[phone]
[phone]

Even after final disposition of this litigation, the confidentiality obligations imposed by

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

4.

11
LLP

10

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

13

order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

14

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

15

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

16

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

17

pursuant to applicable law.

18

//

19
20

5. 1

DURATION

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

21

Each Party or Non-Party that designates information or items for protection under this

22

Order must take care to limit any such designation to specific material that qualifies under the

23

appropriate standards. To the extent it is practical to do so, the Designating Party must designate

24

for protection only those parts of material, documents, items, or oral or written communications

25

that qualify – so that other portions of the material, documents, items, or communications for

26

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

27

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

28

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
4
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page5 of 19

1

unnecessarily encumber or retard the case development process or to impose unnecessary

2

expenses and burdens on other parties) expose the Designating Party to sanctions.

3

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

4

for protection do not qualify for protection at all or do not qualify for the level of protection

5

initially asserted, that Designating Party must promptly notify all other parties that it is

6

withdrawing the mistaken designation.

7

5.2

Manner and Timing of Designations. Except as otherwise provided in this

8

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

9

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

10

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

13

documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the

14

Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

15

ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only a portion or

16

portions of the material on a page qualifies for protection, the Producing Party also must clearly

17

identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must

18

specify, for each portion, the level of protection being asserted.

19

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

20

need not designate them for protection until after the inspecting Party has indicated which

21

material it would like copied and produced. During the inspection and before the designation, all

22

of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

23

ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

24

copied and produced, the Producing Party must determine which documents, or portions thereof,

25

qualify for protection under this Order. Then, before producing the specified documents, the

26

Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

27

CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

28

Material. If only a portion or portions of the material on a page qualifies for protection, the
5
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page6 of 19

1

Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

2

markings in the margins) and must specify, for each portion, the level of protection being

3

asserted.

4

(b)

for testimony given in deposition or in other pretrial or trial

[phone]
[phone]

which protection is sought and to specify the level of protection being asserted. Only those

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to

11

SAN FRANCISCO

Designating Party may invoke on the record (before the deposition, hearing, or other proceeding

10

KUMAGAI

protection and it appears that substantial portions of the testimony may qualify for protection, the

9

&

asserted. When it is impractical to identify separately each portion of testimony that is entitled to

8

ATTORNEYS AT LAW

hearing, or other proceeding, all protected testimony and specify the level of protection being

7

LAFAYETTE

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

6

LLP

5

portions of the testimony that are appropriately designated for protection within the 21 days shall

13

be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating

14

Party may specify, at the deposition or up to 21 days afterwards if that period is properly

15

invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

16

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

17

Parties shall give the other parties notice if they reasonably expect a deposition, hearing

18

or other proceeding to include Protected Material so that the other parties can ensure that only

19

authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

20

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

21

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

22

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

23

Transcripts containing Protected Material shall have an obvious legend on the title page

24

that the transcript contains Protected Material, and the title page shall be followed by a list of all

25

pages (including line numbers as appropriate) that have been designated as Protected Material

26

and the level of protection being asserted by the Designating Party. The Designating Party shall

27

inform the court reporter of these requirements. Any transcript that is prepared before the

28

expiration of a 21-day period for designation shall be treated during that period as if it had been
6
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page7 of 19

1

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

2

otherwise agreed. After the expiration of that period, the transcript shall be treated only as

3

actually designated.

4

(c)

for information produced in some form other than documentary and

5

for any other tangible items, that the Producing Party affix in a prominent place on the exterior of

6

the container or containers in which the information or item is stored the legend

7

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY. If only a

8

portion or portions of the information or item warrant protection, the Producing Party, to the

9

extent practicable, shall identify the protected portion(s) and specify the level of protection being

10

asserted.
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

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

13

Designating Party’s right to secure protection under this Order for such material. Upon timely

14

correction of a designation, the Receiving Party must make reasonable efforts to assure that the

15

material is treated in accordance with the provisions of this Order.

16
17

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

18

designation of confidentiality and/or level of protection by providing written notice of each

19

designation it is challenging and describing the basis for each challenge within 45 days of the

20

Challenging Party's receipt of the information designated as "Confidential." To avoid ambiguity

21

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

22

confidentiality is being made in accordance with this specific paragraph of the Protective Order.

23

6.2

Meet and Confer. The parties shall attempt to resolve each challenge in

24

good faith and must begin the process by conferring directly (in voice to voice dialogue; other

25

forms of communication are not sufficient) within 14 days of the date of service of notice. In

26

conferring, the Challenging Party must explain the basis for its belief that the confidentiality

27

designation and/or level of designation was not proper and must give the Designating Party an

28

opportunity to review the designated material, to reconsider the circumstances, and, if no change
7
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page8 of 19

1

in designation or level of designation is offered, to explain the basis for the chosen designation or

2

level of designation. A Challenging Party may proceed to the next stage of the challenge process

3

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

4

Party is unwilling to participate in the meet and confer process in a timely manner.

5

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

6

court intervention, the Designating Party shall file and serve a motion to retain confidentiality

7

and/or level of designation under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-

8

5 and General Order 62, if applicable) within 21 days of the initial notice of challenge or within

9

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

[phone]
[phone]

affirming that the movant has complied with the meet and confer requirements imposed in the

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

whichever is earlier. Each such motion must be accompanied by a competent declaration

11
LLP

10

preceding paragraph. Failure by the Designating Party to make such a motion including the

13

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

14

confidentiality designation and/or level of designation for each challenged designation and/or

15

level of designation. In addition, the Challenging Party may file a motion challenging a

16

confidentiality designation or a level of designation if there is good cause for doing so, including

17

a challenge to the designation or level of designation of a deposition transcript or any portions

18

thereof. Any motion brought pursuant to this provision must be accompanied by a competent

19

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

20

imposed by the preceding paragraph.

21

The burden of persuasion in any such challenge proceeding shall be on the

22

Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass

23

or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party

24

to sanctions. Unless the Designating Party has waived the confidentiality designation or level of

25

designation by failing to file a motion to retain confidentiality or the level of designation as

26

described above, all parties shall continue to afford the material in question the level of protection

27

to which it is entitled under the Producing Party’s designation until the court rules on the

28

challenge.
8
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page9 of 19

1
2

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

3

disclosed or produced by another Party or by a Non-Party in connection with this case only for

4

prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

5

disclosed only to the categories of persons and under the conditions described in this Order.

6

When the litigation has been terminated, a Receiving Party must comply with the provisions of

7

section 13 below (FINAL DISPOSITION).

8

Protected Material must be stored and maintained by a Receiving Party at a location and

9

in a secure manner that ensures that access is limited to the persons authorized under this Order.

10

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

[phone]
[phone]

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

disclose any information or item designated “CONFIDENTIAL” only to:

13

(a)

the Receiving Party’s Outside Counsel of Record in this action, as

14

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

15

disclose the information for this litigation and who have signed the “Acknowledgment and

16

Agreement to Be Bound” that is attached hereto as Exhibit A;

17

(b)

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

18

the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

19

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

20

(c)

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

21

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

22

and Agreement to Be Bound” (Exhibit A);

23

(d)

the court and its personnel;

24

(e)

court reporters and their staff, professional jury or trial consultants,

25

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

26

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

27
28

(f)

during their depositions, witnesses in the action to whom disclosure

is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
9
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page10 of 19

1

Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

2

Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material

3

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

4

permitted under this Stipulated Protective Order.

5

(g)

6
7

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

8

ONLY” Information or Items: Unless otherwise ordered by the court or permitted in writing by

9

the Designating Party, a Receiving Party may disclose any information or item designated

10

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)

the Receiving Party’s Outside Counsel of Record in this action, as

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

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

13

disclose the information for this litigation and who have signed the “Acknowledgment and

14

Agreement to Be Bound” that is attached hereto as Exhibit A;

15

(b)

Experts of the Receiving Party (1) to whom disclosure is

16

reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and

17

Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

18

7.4(a)(2), below, have been followed;

19

(c)

the court and its personnel;

20

(d)

court reporters and their staff, professional jury or trial consultants,

21

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

22

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

23
24
25
26
27
28

(e)

the author or recipient of a document containing the information or

a custodian or other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)

Unless otherwise ordered by the court or agreed to in writing by the

Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
10
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page11 of 19

connection with which the Expert has offered expert testimony, including through a declaration,

12
[phone]
[phone]

identifies (by name and number of the case, filing date, and location of court) any litigation in

11

FAX

including in connection with a litigation, at any time during the preceding five years,1 and (6)

10

, SUITE 600
, CALIFORNIA 94105

work in his or her areas of expertise or to whom the expert has provided professional services,

9

SPEAR STREET

identifies each person or entity from whom the Expert has received compensation or funding for

8

100

attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

7

SAN FRANCISCO

(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)

6

KUMAGAI

EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert,

5

&

Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

4

ATTORNEYS AT LAW

EYES ONLY pursuant to paragraph 7.2(c) first must make a written request to the Designating

3

LAFAYETTE

information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

2

LLP

1

report, or testimony at a deposition or trial, during the preceding five years.2

13

(b)

A Party that makes a request and provides the information specified

14

in the preceding respective paragraph may disclose the subject Protected Material to the

15

identified Expert unless, within 14 days of delivering the request, the Party receives a written

16

objection from the Designating Party. Any such objection must set forth in detail the grounds on

17

which it is based.

18

(c)

A Party that receives a timely written objection must meet and

19

confer with the Designating Party (through direct voice to voice dialogue) to try to resolve the

20

matter by agreement within seven days of the written objection. If no agreement is reached, the

21

Party seeking to make the disclosure to the Expert may file a motion as provided in Civil Local

22

Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the

23

court to do so. Any such motion must describe the circumstances with specificity, set forth in

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. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page12 of 19

1

detail the reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm

2

that the disclosure would entail, and suggest any additional means that could be used to reduce

3

that risk. In addition, any such motion must be accompanied by a competent declaration

4

describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the content

5

of the meet and confer discussions) and setting forth the reasons advanced by the Designating

6

Party for its refusal to approve the disclosure.

7

In any such proceeding, the Party opposing disclosure to the Expert shall

8

bear the burden of proving that the risk of harm that the disclosure would entail (under the

9

safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its

10

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

13

Expert.
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

14

disclosure of any information or items designated in this action as “CONFIDENTIAL” or

15

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:

16
17
18

(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

19

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

20

subject to this Protective Order. Such notification shall include a copy of this Stipulated

21

Protective Order; and

22
23
24

(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 with the

25

subpoena or court order shall not produce any information designated in this action as

26

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a

27

determination by the court from which the subpoena or order issued, unless the Party has

28

obtained the Designating Party’s permission. The Designating Party shall bear the burden and
12
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page13 of 19

1

expense of seeking protection in that court of its confidential material – and nothing in these

2

provisions should be construed as authorizing or encouraging a Receiving Party in this action to

3

disobey a lawful directive from another court.

4
5

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

IN THIS LITIGATION

6

(a)

The terms of this Order are applicable to information produced by a Non-

7

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

8

ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

9

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

10

provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

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

13

agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

14

Party shall:

15

1.

promptly notify in writing the Requesting Party and the Non-Party

16

that some or all of the information requested is subject to a confidentiality agreement with a Non-

17

Party;

18

2.

promptly provide the Non-Party with a copy of the Stipulated

19

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

20

description of the information requested; and

21
22
23

3.

make the information requested available for inspection by the

Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this court

24

within 14 days of receiving the notice and accompanying information, the Receiving Party may

25

produce the Non-Party’s confidential information responsive to the discovery request. If the Non-

26

Party timely seeks a protective order, the Receiving Party shall not produce any information in its

27

possession or control that is subject to the confidentiality agreement with the Non-Party before a

28

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
13
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page14 of 19

1

burden and expense of seeking protection in this court of its Protected Material.

2

10.

3

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

4

Material to any person or in any circumstance not authorized under this Stipulated Protective

5

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

6

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

7

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

8

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

9

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

10

[phone]
[phone]

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

LAFAYETTE

ATTORNEYS AT LAW

LLP

11

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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

13

produced material is subject to a claim of privilege or other protection, the obligations of the

14

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

15

provision is not intended to modify whatever procedure may be established in an e-discovery

16

order that provides for production without prior privilege review. Pursuant to Federal Rule of

17

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

18

communication or information covered by the attorney-client privilege or work product

19

protection, the parties may incorporate their agreement in the stipulated protective order

20

submitted to the court.

21
22
23
24

12.

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.
12.2

Right to Assert Other Objections. By stipulating to the entry of this

25

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

26

producing any information or item on any ground not addressed in this Stipulated Protective

27

Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of

28

the material covered by this Protective Order.
14
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page15 of 19

1

12.3

Filing Protected Material. Without written permission from the

2

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

3

Party may not file in the public record in this action any Protected Material. A Party that seeks to

4

file under seal any Protected Material must comply with Civil Local Rule 79-5 and General

5

Order 62. Protected Material may only be filed under seal pursuant to a court order authorizing

6

the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and

7

General Order 62, a sealing order will issue only upon a request establishing that the Protected

8

Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection

9

under the law. If a Receiving Party's request to file Protected Material under seal pursuant to

[phone]
[phone]

may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

Civil Local Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party

11
LLP

10

otherwise instructed by the court.

13

13.

14

Counsel shall keep a record of all copies of Protected Material distributed, in whole or in

15

part, to any Qualified Person. Within 60 days after the final disposition of this action, as defined

16

in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or

17

destroy such material. As used in this subdivision, “all Protected Material” includes all copies,

18

abstracts, compilations, summaries, and any other format reproducing or capturing any of the

19

Protected Material. The Receiving Party must submit a written certification to the Producing

20

Party (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that

21

(1) identifies (by category, where appropriate) all the Protected Material that was returned or

22

destroyed, and (2) affirms that the Receiving Party has not retained any copies, abstracts,

23

compilations, summaries or any other format reproducing or capturing any of the Protected

24

Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

25

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

26

correspondence, deposition and trial exhibits, expert reports, attorney work product, and

27

consultant and expert work product, even if such materials contain Protected Material. Any such

28

archival copies that contain or constitute Protected Material remain subject to this Protective

FINAL DISPOSITION

15
[PROPOSED] STIPULATED PROTECTIVE ORDER (Case No. 3:12-cv-01472-JSW)

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page16 of 19

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page17 of 19

January 2, 2013

Case3:12-cv-01472-JSW Document29 Filed12/17/12 Page18 of 19

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

[print or type full address], declare under penalty of perjury that I have read in its entirety and

5

understand the Stipulated Protective Order that was issued by the United States District Court for

6

the Northern District of California on _________________ in the case of Pacatte Construction

7

Company, Inc. v. AMCO Insurance Company, et al., Case No. 3:12-cv-01472-JSW. I agree to

8

comply with and to be bound by all the terms of this Stipulated Protective Order and I understand

9

and acknowledge that failure to so comply could expose me to sanctions and punishment in the

[phone]
[phone]

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

12

FAX

, SUITE 600
, CALIFORNIA 94105
SPEAR STREET

100

SAN FRANCISCO

KUMAGAI
&

ATTORNEYS AT LAW

LAFAYETTE

nature of contempt. I solemnly promise that I will not disclose in any manner any information or

11
LLP

10

compliance with the provisions 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. 3:12-cv-01472-JSW)