Melgar v. CSK Auto, Inc.

Filing 37

STIPULATION AND ORDER re 36 STIPULATION WITH PROPOSED ORDER filed by CSK Auto, Inc.. Signed by Judge Edward M. Chen on 9/8/14. (bpf, COURT STAFF) (Filed on 9/8/2014)

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MICHAEL MALK (Bar No. 222366)
[e-mail]
MICHAEL MALK, ESQ., APC
1180 South Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone:
310.203.0016
Facsimile:
310.499.5210

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Attorneys for Plaintiff OSMIN MELGAR

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JAMES M. PETERSON (Bar No. 137837)
[e-mail]
EDWIN M. BONISKE (Bar No. 265701)
[e-mail]
HIGGS FLETCHER & MACK LLP
401 West “A” Street, Suite 2600
San Diego, CA 92101-7913
Telephone:
619.236.1551
Facsimile:
619.696.1410

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Attorneys for Defendant
CSK AUTO, INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OSMIN MELGAR, individually and on
behalf of all others similarly situated,

STIPULATION AND PROTECTIVE
ORDER

Plaintiff,

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Case No. C 13-03769 (EMC)

v.

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CSK AUTO, INC., an Arizona
Corporation, and DOES 1-100,

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Defendants.

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1208662.1

STIPULATION AND PROTECTIVE ORDER

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PURPOSES AND LIMITATIONS

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

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

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

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Accordingly, Plaintiffs OSMIN MELGAR and Defendant CSK AUTO, INC. k/n/a/ O’Reilly

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Auto Enterprises, LLC. (individually each a “Party,” collectively the “Parties”) hereby stipulate to

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and petition the court to enter the following Stipulated Protective Order.

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The Parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items designated as “CONFIDENTIAL” under this

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agreement, and which are entitled to confidential treatment under applicable legal principles.
The Parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal; Civil Local Rule

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79-5 sets forth the procedures that must be followed and the standards that will be applied when a

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Party seeks permission from the court to file material under seal.

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2.

DEFINITIONS

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2.1

Challenging Party: a Party that challenges the designation of information or items

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under this Order.

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2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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

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of Civil Procedure 26(c), including, without limitation, documents containing proprietary

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information, trade secret information, private personal information, and/or financial information.

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2.3

Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as

well as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that it

produces in discovery as “CONFIDENTIAL.”
2.5

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

medium or manner in which it is generated, stored, or maintained (including, among other things,
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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

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

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or

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consultant in this action, as well as any non-retained experts.

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2.7

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

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In-House Counsel: attorneys who are employees of a party to this action. In-House

2.8

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.

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2.9

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

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action but are retained to represent or advise said Party and have appeared in this action on

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behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party.

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2.10

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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

2.11

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

Material in this action.

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2.12

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits/demonstrations, and organizing,

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storing, or retrieving data in any form/medium) and their employees and subcontractors.

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2.13

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”

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2.14

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

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

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

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

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the following

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

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

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

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

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

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the information lawfully and under no obligation of confidentiality to the Designating Party.

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Any use of Protected Material at trial shall be governed by a separate agreement or order.
4.

DURATION

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

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

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order otherwise directs.

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“Final disposition” shall be deemed to be the later of (1) dismissal of all claims and

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

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

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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The Designating Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify – so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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

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

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

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

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

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

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

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designated before the material is disclosed or produced. However, failure to designate materials

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Confidential at the time of production does not constitute a waiver to later designate materials as

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protected under this agreement.

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Designation in conformity with this Order requires:

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(a)

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

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

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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by marking in the margins).

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

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

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

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of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced, the Producing Party

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must determine which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or

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

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

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(b)

for testimony given in deposition or in other pretrial or trial proceedings,

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

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other proceeding, all protected testimony.

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(c)

for information produced in some form other than documentary and for any

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

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container(s) in which the information or item is stored the legend “CONFIDENTIAL.” If only a

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

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extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of confidentiality at

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any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is

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necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

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significant disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order.

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The Parties shall attempt to resolve each challenge in good faith and must begin the

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process by conferring directly (in voice to voice dialogue; other forms of communication are not

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sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party
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must explain the basis for its belief that the confidentiality designation was not proper and must

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give the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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

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it has engaged in this meet and confer process first or establishes that the Designating Party is

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

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party shall file and serve a motion challenging a

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confidentiality designation within 28 days of the Designating Party’s notice that it will not de-

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designated challenged materials, unless otherwise agreed upon by the Parties and confirmed in

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writing. Each such motion must be accompanied by a competent declaration affirming that the

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movant has complied with the meet and confer requirements imposed by the preceding paragraph.

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Failure by the Challenging Party to make such a motion within 28 days, or any other agreed upon

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time period, shall waive any challenge as to each challenged designation.

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

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

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

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all Parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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

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

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to the categories of persons and under the conditions described in this Order. When the litigation

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has been terminated, a Receiving Party must comply with the provisions of section 13 below

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(FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and

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

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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

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information or item designated “CONFIDENTIAL” only to:

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(a)

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

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

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

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

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

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(c)

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

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

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and Agreement to Be Bound” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

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

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

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

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(f)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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

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under this Stipulated Protective Order.

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(g)

the author or recipient of a document containing the information or a

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

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

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If a Party is served with a subpoena or a court order in other litigation that compels

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disclosure of any information or items designated herein as “CONFIDENTIAL,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena or order to

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

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

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Protective Order; and
(c)

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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

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

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material –

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and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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9.

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

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(a)

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

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Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided by this

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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b)

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

produce a Non-Party’s confidential information in its possession, and the Party is subject to an
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agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

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Party shall:

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(1)

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

that the information requested is subject to a confidentiality agreement with a Non-Party;

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(2)

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

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

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description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party.

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(c)

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

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

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

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any information

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in its possession or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. 1 Absent a court order to the contrary, the Non-Party shall

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

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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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

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

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

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

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

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

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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a
Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whatever procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product
protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
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 Protective

Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
Party waives any right to object on any ground to use in evidence of any of the material covered
by this Protective Order.
12.3

Filing Protected Material. Without written permission from the Designating Party

or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in this action any Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request
establishing that the Protected Material at issue is privileged, protectable as a trade secret, or
otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

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______________________________________
Hon. Edward M. Chen
United States District Judge . Chen
dward M
Judge E

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9/8/14
DATED: ____________

UNIT
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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D IS T IC T
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OF

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________ [full name], of ____________________________________

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[full address], declare under penalty of perjury that I have read in its entirety and understand the

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

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District of California on _____________ in the case of Osmin Melgar v. CSK Auto, Inc., Case No.

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C- 13-03769 (EMC). I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint _______________________________ [print full name] of

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______________________________________________ [print full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________
Printed name: _______________________________

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Signature: __________________________________

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