Archuleta v. Federal Express Corporation

Filing 37

STIPULATION AND ORDER RE 36 GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS. Signed by Judge Richard Seeborg on 8/29/13. (cl, COURT STAFF) (Filed on 8/29/2013)

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Kathryn Landman Bain, State Bar No. 260465
Laura M. Mazza, State Bar No. 259133
LANDMAN & MAZZA LLP
951 Mariners Island Blvd., Ste. 300
San Mateo, CA 94404
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff
AMANDA ARCHULETA
Emily C. Pera, Bar No. 290445
FEDERAL EXPRESS CORPORATION
2601 Main Street, Suite 340
Irvine, California 92614
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Defendant
FEDERAL EXPRESS CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AMANDA ARCHULETA, an individual,

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Case No. CV 12-3614 RS

Plaintiff,
STIPULATION AND [PROPOSED]
ORDER GOVERNING THE
DESIGNATION AND HANDLING OF
CONFIDENTIAL MATERIALS

vs.

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FEDERAL EXPRESS CORPORATION, a
corporation, and DOES 1-50, inclusive,
Defendants.

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Case No. CV 12-3614 RS

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STIPULATION
WHEREAS, in the course of this action, disclosure may be sought or made of information which

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the parties or a third-party regard as being confidential, private, a trade secret, or proprietary in nature;

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and

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WHEREAS, the parties desire to establish a mechanism to protect the disclosure of such
confidential, private, trade secret, or proprietary information in this action.
IT IS HEREBY STIPULATED by and between Plaintiff Amanda Archuleta (“Plaintiff”) and

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Defendant Federal Express Corporation (“Defendant”) by and through their attorneys of record, that the

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following should govern the disclosure of confidential, private, trade secret and proprietary information

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in this action during the course of discovery and respectfully jointly request that the Court enter this

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Proposed Order Governing the Designation and Handling of Confidential Materials (the “Order”).
DEFINITIONS

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For purposes of this Stipulation, the following definitions shall apply:

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1.

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“Party” means every party to this action, as well as any third-party, and every director,

officer, employee and agent of every party or third-party.

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2.

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Producing Party.

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3.

“Producing Party” is a party that produces Disclosure of Discovery material in this case.

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4.

“Designating Party” is a party that designates information or items that it produces in

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“Receiving Party” is a party that receives disclosure or discovery material from a

disclosures or in responses to discovery or otherwise as “CONFIDENTIAL” information.
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“CONFIDENTIAL” is a designation that any Party may apply to information which it

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believes, in good faith, to constitute, contain, reveal or reflect confidential or privileged information

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protected by applicable state and/or federal law, such as employee medical records, compensation, salary,

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personnel records, trade secrets and other confidential research, development, commercial or personal

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information relating to its business or which was disclosed to it in confidence by any third-party, the

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disclosure of which to the general public could adversely prejudice that Party. Information will not be

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deemed “CONFIDENTIAL,” and the Parties shall use reasonable efforts to ensure that information is not

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designated as such, if the content or substance thereof:
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a.

is at the time of disclosure, or subsequently becomes generally available to the

relevant public through no wrongful act or failure to act on the part of the Receiving Party; or

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b.

is disclosed to the Receiving Party by a third-party without breach of an obligation

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of confidence, except if the information is disclosed in response to a subpoena and a Party subsequently

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designates the information as “CONFIDENTIAL” pursuant to section “d.” below.

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3.

“Confidential Information” means any information which is properly designated

“CONFIDENTIAL” as described above.
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“Designating Party” means any Party disclosing during this action information which is

designated “CONFIDENTIAL” by said Party.
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“Counsel of Record” includes the following law firms and any law firms retained by a

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third-party in connection with disclosure of Confidential Information hereunder, including all attorneys,

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paraprofessionals, clerks, and secretaries employed by such law firms:

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a.

Landman & Mazza LLP

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b.

Federal Express Corporation Legal Department

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DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS

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All originals or copies, of transcripts of depositions (regardless of medium of transcription),

Materials Subject to Designation.

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exhibits, answers to interrogatories and requests for admissions, and all documents, materials, tangible

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things and information obtained through discovery by inspection of files or facilities, production of

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documents and things, or otherwise obtained pursuant to this action, may be designated as

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“CONFIDENTIAL” by any Party in conformity with the definitions set forth above.

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2.

Manner of Designating Confidential Information.
a.

A Party shall designate documents containing Confidential Information by placing

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a legend on each page of any document that the Party wishes to protect against disclosure or use, or in the

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case of computer disks or tape, on the cover or container of the disk or tape. This legend shall state

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“CONFIDENTIAL” and documents so designated shall be treated according to their designation, as set

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forth in Paragraph 3 below. A designation of Confidential Information as to anything for which

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inspection or sampling is allowed shall be made by placing a “CONFIDENTIAL” legend on the thing or
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container within which it is stored, or by some other means of designation agreed upon by the Parties.

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With the exception of Section 2(b) immediately below, all documents and things shall be marked prior to

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the provision of physical copies of these documents and things to counsel for the Receiving Party.

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b.

A Party may, within ten (10) days after this Stipulation is fully executed, designate

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as “CONFIDENTIAL” any previously produced documents in discovery that contain information listed

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in definition of “CONFIDENTIAL” herein, and will provide written notice of such designations to every

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other Party. If material is designated as “CONFIDENTIAL” after the material was initially produced, the

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Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the

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

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c.

The parties recognize the possibility of inadvertent production of materials to

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which a Party may make a claim of privilege or of protection from discovery as trial preparation material.

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The inadvertent production of such documents shall not operate as a waiver of that privilege or protection

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and shall not operate as any subject matter waiver of that privilege or protection. The Receiving Party,

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on timely notification of the inadvertent production, must make reasonable efforts to assure that the

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material is returned to the Producing Party.

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d.

Any documents produced by a third party in response to a subpoena issued by a

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Party may be designated “CONFIDENTIAL” by any Party within ten (10) days of receipt of the

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documents. A Party may designate such documents as “CONFIDENTIAL” using the same method

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described in section “a.” above.

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3.

Treatment of Confidential Information.
a.

Information designated as “CONFIDENTIAL,” and all information derived from

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the information so designated (excluding such information as is derived lawfully from an independent

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source without reference to or reliance on the designated information) shall not be disclosed, given,

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shown, made available or communicated in any way to any person or entity other than: Counsel of

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Record and their respective legal assistants and staff; Plaintiff and Defendant; the Designating Party as

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per Paragraph 11 below; authors and recipients, as per Paragraph 12 below; deponents and designated

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persons testifying during the course of depositions taken in the action as provided by Paragraph 8 below;

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the persons to whom disclosure is permitted under the terms of Paragraphs 4, 5 and 9 below; and the
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officers, directors, attorneys, and managers of the Parties who are working directly on this litigation, to

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whom it is necessary that the information be disclosed for the purposes of this litigation, and who have

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executed and delivered to Counsel of Record making the disclosure of the Confidentiality Agreement in

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the form attached to this Stipulation as Exhibit “A.” Information designated as “CONFIDENTIAL” and

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all information derived from the information so designated (excluding such information as is derived

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lawfully from an independent source without reference to or reliance on the designated information) shall

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be used only for the purposes of this litigation and shall not be used for any other purpose whatsoever.

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4.

Outside Experts and Retained Consultants. Information designated as

“CONFIDENTIAL” may also be shown to outside experts or consultants, together with their clerical

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personnel, who have been retained by a Party in connection with preparation for trial or for trial in this

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action.

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5.

Request for Additional Disclosure. If any Counsel of Record desires to give, show,

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make available or communicate to any person apart from those permitted under Paragraphs 3 and 4

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above any information designated as “CONFIDENTIAL” that counsel shall first obtain the written

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consent of the Designating Party through such Party’s Counsel of Record or, if written consent is

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withheld, a court order authorizing such disclosure. Each person to whom the Confidential Information

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is to be given, shown, made available or communicated pursuant to this paragraph must first execute a

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written Confidentiality Agreement, in the form attached to this Order as Exhibit “A,” a copy of which

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shall be sent to the Designating Party prior to any disclosure. Only after all of the foregoing conditions

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have been fully satisfied may the Confidential Information be given, shown, made available or

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communicated to any person other than those permitted under Paragraphs 3 and 4 above. Nothing

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contained herein shall be construed to restrict or limit the rights of the Parties in another action to

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conduct discovery or the subpoena power of another court.

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Record of Disclosure. Any Counsel of Record making any disclosure to any person

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required to sign a Confidentiality Agreement under the terms of this Stipulation shall retain the original

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of the Confidentiality Agreement signed by such person. The original Confidentiality Agreements shall

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be made available for inspection and copying by any opposing Counsel of Record upon written request.

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Maintenance of Designated Information. Counsel of Record who have received
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Confidential Information that is provided pursuant to this Stipulation shall maintain such Confidential

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Information in a secure and safe area and shall exercise due and proper care with respect to the storage,

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custody and use of all Confidential Information, so as to prevent the unauthorized or inadvertent

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disclosure of any of it.

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Manner of Designating Depositions. Should Counsel of Record for a party believe that

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any question posed to a witness at deposition upon oral examination will disclose Confidential

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Information, or that answers to any question will require such disclosure, or that documents designated as

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containing Confidential Information will be used as exhibits during examination, said counsel can

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identify on the record that questions concerning designated Confidential Information are being asked or

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documents containing Confidential Information are being utilized and designate the deposition and

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resulting transcript as “CONFIDENTIAL.” Unless otherwise ordered by this Court, the Designating

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Party or the Receiving Party shall have the right to have all persons, except the person testifying in the

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deposition and his or her counsel, Counsel of Record for the Parties, the court reporter, and such other

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persons as are permitted under the terms of this Order Stipulation to have access to Confidential

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Information, excluded from a deposition designated as “CONFIDENTIAL” during the taking of the

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testimony designated pursuant to this Order.

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Court Reporters/Videographers. Any court reporter/videographer shall be entitled to

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hear Confidential Information and receive and handle exhibits containing Confidential Information as

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necessary or appropriate for the performance of his or her duties.

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Filing Documents with the Court. If, after a Party receives information designated

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“CONFIDENTIAL” by another Party and it appears to the Receiving Party that papers containing

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Confidential Information must be filed with the Court, the Receiving Party shall meet and confer with the

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Designating Party to determine the appropriate means for filing such documents with the Court while

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preserving the confidentiality of the information. If the Parties are unable to agree as to the appropriate

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means for filing such documents,, the Designating Party who in good faith believes that lodging or filing

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under seal is required may, within ten (10) business days of being notified by the Receiving Party of its

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intent to file, file an application with the Court to treat the filing as having been filed or lodged under

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seal. Notice of such request shall be given to all Parties. Nothing in this provision relieves a Party of
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liability for damages caused by failure to properly redact or file documents containing Confidential

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Information under seal.

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No Effects on Party’s Own Use. Nothing contained in this Stipulation shall affect any

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right of a Party to disclose or use any information designated and produced by it as “CONFIDENTIAL”

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or the right of any party to show such information to officers, directors, employees, agents, partners, or

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attorneys of the Designating Party.

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No Effect on Disclosure to Author or Addressees. Nothing contained in this Stipulation

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shall prevent, limit or otherwise restrict any Party from disclosing any information designated

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“CONFIDENTIAL” to any author or prior recipient of a document containing the information.

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Legal Effect of Confidentiality Designations. Neither the designation by a Party of any

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document, material or information as “CONFIDENTIAL” nor treatment by a Party of any such

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document, material or information in conformity with such designation shall constitute or be construed in

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any way as an admission or agreement by any non-Designating Party that the designated disclosure

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constitutes or contains any trade secret, propriety information or Confidential Information.

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Final Disposition of Action. Upon the final disposition of this action, each Counsel of

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Record shall upon request: (a) promptly return to Counsel of Record for the Designating Party, at the

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expense of Designating Party all documents and things designated “CONFIDENTIAL” and all copies

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made of such documents and things, including all electronic copies of documents stored on databases

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maintained for discovery purposes; and (b) promptly destroy or see to the destruction of all writings

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related to Confidential Information, including but not limited to notes, analyses, memoranda or reports

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provided to or by any other persons, and certify to the Designating Party that such destruction has been

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done. As an exception to the above, Counsel of Record may retain a single file copy of any document

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filed with the Court, any written discovery response, a transcript of any deposition testimony, together

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with all exhibits to that transcript, and a database containing electronic copies of documents designated

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“CONFIDENTIAL.” The copy of these retained documents shall continue to be treated as

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“CONFIDENTIAL” and Counsel of Record shall immediately notify opposing Counsel of Record of any

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attempt by third parties to inspect or copy said documents.

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Motion for Relief from Designation. If, at any time, after a Party receives information
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designated “CONFIDENTIAL” by another Party, it appears to the Receiving Party that any such

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information is not entitled to the “CONFIDENTIAL” designation, such Receiving Party shall first notify

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Counsel of Record for the Designating Party in writing, providing its reasons for challenging the

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designation. The Receiving Party may make such objection at any time during this litigation. If, after

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five (5) calendar days after such notice is given, the Parties have been unable to reach an agreement as to

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whether the information should be treated as “CONFIDENTIAL,” the Receiving Party will have to notify

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the Designating Party as to whether the Receiving Party intends to bring a motion with the Court to have

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the Court determine whether such designated information is appropriately designated as

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“CONFIDENTIAL.” The Receiving Party will then have seven (7) calendar days to notice the motion at

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which point the motion and any required briefing will proceed as required by the Court’s Local Rules.

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Until such motion has been decided, the information shall be treated as and considered properly

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designated.

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Inadvertent Failure to Designate or Disclosure. An inadvertent failure to designate

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qualified information or items as “CONFIDENTIAL” does not waive the Designating Party’s right to

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secure protection under this stipulation and Order for such material. If material is designated as

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“CONFIDENTIAL” after the material was initially produced, the Receiving Party, on timely notification

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of the designation, must make reasonable efforts to treat the material in accordance with the provisions of

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this Order. Additionally, the Parties recognize the possibility of inadvertent production of materials to

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which a Party may make a claim of privilege or protection from discovery as trial preparation material.

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The inadvertent production of such materials shall not operate as a waiver of that privilege or protection

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and shall not operate as any subject matter waiver of that privilege or protection. The Receiving Party,

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on timely notification of the inadvertent production, must make reasonable efforts to return the material

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to the Producing Party and delete any electronic copies of the material.

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Survival of Terms. Absent written modification by the Parties or further order of the

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Court, the provisions of this Stipulation that restrict the disclosure and use of Confidential Information

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shall survive the final disposition of this action and continue to be binding on all persons subject to the

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terms of this Stipulation. However, no modification by the Parties shall have the force or effect of a

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Court Order unless the Court approves the modification.
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Effect on Discovery. This Order shall not preclude or limit the right of any Party to

object to or resist discovery on any ground which would otherwise be available.
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Order Binding When Signed. This Stipulation shall be binding on the Parties when

signed regardless of whether or when the Court enters an Order thereon.
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Violation of Stipulation/Court Order. In the event anyone shall violate or threaten to

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violate any term of this Stipulation or subsequent Court Order entered thereon, the Parties agree that the

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aggrieved Party may immediately apply to the Court in this action to seek relief against any such person

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violating or threatening to violate any of the terms of this Stipulation or any subsequent court Order

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entered thereon. The Parties and any other person subject to the terms of this Stipulation agree that this

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Court has jurisdiction of such person or Party, for the purpose of enforcing this Stipulation.
IT IS SO STIPULATED AND AGREED.

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DATED: August 28, 2013

Respectfully submitted,

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LANDMAN & MAZZA LLP
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By:
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/s/
Kathryn Landman Bain
Attorneys for Plaintiff
AMANDA ARCHULETA

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DATED: August 28, 2013

Respectfully submitted,

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By:

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/s/
Emily C. Pera
Attorneys for Defendant
FEDERAL EXPRESS CORPORATION

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[PROPOSED] ORDER

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All of the parties to the above-captioned action having so stipulated, and GOOD CAUSE

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APPEARING THEREFORE, IT IS HEREBY ORDERED that:
The above Stipulation Governing the Designation and Handling of Confidential Materials is made
an Order of this Court.
IT IS SO ORDERED.
Dated: August 29 , 2013

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____________________________________

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Richard Seeborg, US District Court Judge

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EXHIBIT “A”

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ACKNOWLEDGMENT OF RECEIPT OF ORDER GOVERNING THE

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DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS AND AGREEMENT TO BE

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BOUND THEREBY

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I hereby acknowledge receipt of and that I have read a copy of the Stipulation Governing the

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Designation and Handling of Confidential Materials (the “Order”), which I understand was made on

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______________________, 2013, in the action entitled Amanda Archuleta v. Federal Express

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Corporation., US District Court Case No. CV 12-3614 RS. I agree that I will be bound by the provisions

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of the Stipulation and subsequently entered Court Order thereon with respect to any Confidential

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Information provided to me under the terms thereof. I agree that, if I receive any Confidential

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Information, I will not make any copies thereof nor disclose such Confidential Information except as

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permitted by the Order. I further understand that if I fail to comply with the terms of the Order, I may be

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subject to sanctions by the Court, and I hereby consent to personal jurisdiction in the State of California

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with respect to any matter relating to or arising out of the Stipulation and/or subsequent court Order.

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Executed this _____ day of _________________, 2013, at _________________, California.
___________________________________

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[Name]

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