O'Connor et al v. Uber Technologies, Inc. et al

Filing 208

STIPULATION AND ORDER re 207 STIPULATION WITH PROPOSED ORDER Amended Stipulated Protective Order filed by Thomas Colopy, Elie Gurfinkel, Matthew Manahan, Douglas O'Connor. Signed by Judge Edward M. Chen on 11/26/14. (bpf, COURT STAFF) (Filed on 11/26/2014)

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ROBERT JON HENDRICKS, State Bar No. 179751
STEPHEN L. TAEUSCH, State Bar No. 247708
CAITLIN V. MAY, State Bar No. 293141
MORGAN, LEWIS & BOCKIUS LLP
One Market Street, Spear Street Tower
San Francisco, California 94105-1126
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
UBER TECHNOLOGIES, INC.

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SHANNON LISS-RIORDAN, pro hac vice
([e-mail])
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone:
[phone]
Facsimile:
[phone]

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MATTHEW D. CARLSON (SBN 273242)
([e-mail])
CARLSON LEGAL SERVICES
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone:
[phone]
Attorneys for Plaintiffs
DOUGLAS O’CONNOR, et al.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS O’CONNOR, THOMAS
COLOPY, MATTHEW MANAHAN, and
ELIE GURFINKEL, individually and on
behalf of all others similarly situated;
Plaintiffs,

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Case No. CV 13-03826-EMC
AMENDED STIPULATED PROTECTIVE
ORDER
Complaint Filed:

August 16, 2013

vs.
UBER TECHNOLOGIES, INC.,
Defendant.

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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This Amended Protective order is intended to amend and supersede the prior protective
order entered by the Court on October 21, 2014 (DKT. 181). Disclosure and discovery activity in
this action are likely to involve production of confidential, proprietary, or private information for
which special protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and
petition the court to enter the following Stipulated Protective Order. The parties acknowledge
that this Order does not confer blanket protections on all disclosures or responses to discovery
and that the protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal
principles. The parties further acknowledge that this Stipulated Protective Order does not entitle
them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures
that must be followed and the standards that will be applied when a party seeks permission from
the court to file material under seal.
1.

The Protective Order shall govern all materials deemed to be “Confidential

Information.” A Party or a Non-Party may designate as “Confidential Information” any
documents or information produced in response to informal or formal discovery requests,
subpoenas and/or other exchanges of documents/information which, in good faith, such Party
deems confidential, including without limitation, any documents or information:
(a)

Referring or related to confidential and proprietary human resources,

business or pricing information and/or financial records and information of Defendant;
(b)

Referring or related to any current, former or prospective business partner

or third-party vendor of Defendant;
(c)

Referring or related to any other confidential or trade secret information of

Defendant; and
(d)

Any portions of depositions (including audio or video) where Confidential

Information is disclosed or used as exhibits.
Nothing in this Protective Order shall be deemed to require the production of information

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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that a party or a Non-Party believes to be objectionable on other grounds, nor shall anything in
this Protective Order be deemed to allow for non-production of confidential information that is
otherwise discoverable.
2.

In the case of documents and the information contained therein, designation of

Confidential Information produced pursuant to this Order shall be made by placing the following
legend on the face of the document or collection of documents: “CONFIDENTIAL –
PRODUCED PURSUANT TO PROTECTIVE ORDER.” Upon such designation, all parties
shall treat the identified information as confidential under this agreement until and unless it is
otherwise agreed by all parties or ordered by the Court. In the event a party or a Non-Party
neglects to identify any disclosed information as confidential, it may do so after disclosure by
sending notice to all parties that clearly delineates the confidential information and describes the
reason for the initial failure to designate.
3.

Confidential Information shall be held in confidence by each qualified recipient to

whom it is disclosed, shall be used only for purposes of this action, shall not be used for any
business purpose, and shall be disclosed only to qualified recipients for purposes that are
specifically and directly related to the reasonable conduct of this litigation.
4.

Qualified recipients shall include only the following:
(a)

In-house counsel and law firms for each Party and the secretarial, clerical

and paralegal staff of each, if/as needed to perform their job duties;
(b)

Deposition notaries;

(c)

Persons other than legal counsel who have been retained or specially

employed by a Party as an expert witness or consultant for purposes of this lawsuit or to perform
investigative work or fact research, provided that the disclosing counsel identify to opposing
counsel and to counsel for any Non-Party who produced the Confidential Information to be
disclosed such expert witness or consultant, and provide to opposing counsel and to counsel for
any Non-Party who produced the Confidential Information to be disclosed that individual’s full
curriculum vitae, at least one week before the disclosure for the sole purpose of affording the

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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opposing party or the Non-Party who produced the Confidential Information to be disclosed an
opportunity to object to the disclosure if necessary. However, the opposing party or the NonParty who produced the Confidential Information to be disclosed shall not be permitted to use the
disclosure of any such expert witness or consultant for any other purpose in the litigation. The
opposing party or the Non-Party who produced the Confidential Information to be disclosed shall
have one week to notify the disclosing counsel of an objection to the disclosure. If any objections
are raised, no confidential materials shall be shown to the expert witness or consultant until after
all objections have been resolved by the Court;

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(d)

(e)
(f)

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A mediator selected by mutual agreement of the Parties; and
The Parties as defined above through their employees who are engaged

this case;

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Deponents during the course of their depositions or potential witnesses of

directly in this litigation on a need to know basis.
5.

Persons to whom Confidential Information is shown shall be informed of the terms

of this Order, advised that its breach may be punished or sanctioned as contempt of the Court and
required to sign the Acknowledgement and Agreement to Be Bound by Protective Order in the
form attached this Order as Exhibit A. Deponents may be shown Confidential materials during
their deposition but shall not be permitted to keep copies of said Confidential materials nor any
portion of the deposition transcript reflecting the Confidential Information. Portions of deposition
testimony deemed confidential by any party may be so designated at the deposition, and any such
testimony shall be segregated in the deposition transcript and identified as “confidential” by the
stenographer assigned to the deposition.
6.

Challenging Confidentiality Designations
(a)

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

designation of confidentiality at any time. Unless a prompt challenge to a designating party’s or
non-party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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not waive its right to challenge a confidentiality designation by electing not to mount a challenge
promptly after the original designation is disclosed.
(b)

Meet and Confer. The party challenging a confidentiality designation shall

initiate the dispute resolution process by providing written notice of each designation it is
challenging and describing the basis for each challenge. The parties and the non-party who
designated the information as confidential shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice to voice dialogue; other forms of
communication are not sufficient) within 14 days of the date of service of notice. In conferring,
the challenging party must explain the basis for its belief that the confidentiality designation was
not proper and must give the designating party and the non-party who designated the information
as confidential an opportunity to review the designated material, to reconsider the circumstances,
and, if no change in designation is offered, to explain the basis for the chosen designation.
(c)

Judicial Intervention.
(i)

Party Designations. If the parties who designated the information as

confidential cannot resolve a challenge without court intervention, the designating party shall file
and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with
Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14
days of the parties who designated the information as confidential agreeing that the meet and
confer process will not resolve their dispute, whichever is earlier. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements imposed in the preceding paragraph. Failure by the designating party to
make such a motion including the required declaration within 21 days (or 14 days, if applicable)
shall automatically waive the confidentiality designation for each challenged designation. In
addition, the challenging party may file a motion challenging a confidentiality designation at any
time if there is good cause for doing so, including a challenge to the designation of a deposition
transcript or any portions thereof. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied with the meet

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STIPULATED PROTECTIVE ORDER
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and confer requirements imposed by the preceding paragraph. The burden of persuasion in any
such challenge proceeding shall be on the designating party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
other parties) may expose the challenging party to sanctions. Unless the designating party has
waived the confidentiality designation by failing to file a motion to retain confidentiality as
described above, all parties shall continue to afford the material in question the level of protection
to which it is entitled under the Producing Party’s designation until the court rules on the
challenge.
(ii)

Non-Party Designations. In the event of designations by non-

parties, if the parties and the non-party who designated the information as confidential cannot
resolve a challenge without court intervention, the party challenging the designation shall file and
serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with Civil
Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days
of the parties and the non-party who designated the information as confidential agreeing that the
meet and confer process will not resolve their dispute, whichever is later. Each such motion must
be accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements imposed in the preceding paragraph. Failure by the challenging party to
make such a motion including the required declaration within 21 days (or 14 days, if applicable)
shall waive the right to challenge the confidentiality designation for each challenged designation,
except upon an independent showing of good cause for the failure to make the motion within 21
days (or 14 days, if applicable). In addition, the challenging party may file a motion challenging
the confidentiality designation of a deposition transcript or any portions thereof at any time if
there is good cause for doing so. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements imposed by the preceding paragraph. The burden of persuasion in any
such challenge proceeding shall be on the challenging party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on

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STIPULATED PROTECTIVE ORDER
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other parties) may expose the challenging party to sanctions. Unless the designating non-party has
affirmatively waived the confidentiality designation, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the producing non-party’s
designation until the court rules on the challenge.
7.

No copies of Confidential Information shall be made except as required for the

conduct of this litigation and by or on behalf of attorneys of record in this action. Any person
making copies of such information shall maintain all copies within their possession or the
possession of those entitled to access to such information under this Order. Copies of
confidential documents that are attached to pleadings or motions filed with the court may be
retained in counsel’s file. Any other copies of confidential documents shall be destroyed when no
longer required for purposes of this litigation.
8.

All information and/or documents produced in this action that are Confidential

shall be used only for purposes of this litigation and not for any other purpose.
9.

In the event that a Party or Non-Party wishes to use any Confidential Information

in any papers filed in Court in this litigation, the Party or Non-Party shall file a motion requesting
that the Court maintain the documents containing Confidential Information under seal pursuant to
Civil Local Rule 79-5. In the event the Party or Non-Party does not believe the documents should
be filed under seal, it shall meet and confer with regard to which documents, if any, should be
filed under seal. Should the Parties and designating Non-Party not agree upon which documents
should be placed under seal, the Party or Non-Party seeking the maintenance of such documents
under seal shall file a motion requesting that the Court maintain the documents under seal. The
Parties acknowledge that whether Confidential Information submitted to the Court is maintained
under seal is subject to the Court’s ultimate decision on any motion to place and/or accept
confidential documents under seal. The parties and non-parties shall follow the procedure set
forth in Civil Local Rule 79-5 regarding filing documents under seal in civil cases.
10.

The termination of this action shall not relieve the Parties and persons obligated

hereunder from their responsibility to maintain the confidentiality of information designated

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STIPULATED PROTECTIVE ORDER
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confidential pursuant to this Order.
11.

Upon termination of this action by entry of a final judgment (inclusive of any

appeals or petitions for review), the Parties and designating Non-Parties may request the return or
destruction of all previously furnished Confidential Information, including any copies thereof,
and each person or Party to whom such Confidential Information has been furnished or produced
shall be obligated to comply with such request within thirty (30) days, with the exception of
copies of Confidential Information that were filed with the Court as part of this action, which the
Parties’ counsel shall be permitted to retain. Any Confidential Information that is not requested
shall be destroyed, subject to the provisions of paragraph 8 herein.
12.

Nothing in this Protective Order shall be construed as an admission as to the

relevance, authenticity, foundation or admissibility of any document, material, transcript, or other
information.
13.

Nothing in the Protective Order shall be deemed to preclude any Party or Non-

Party from moving to modify or dissolve this Order.
14.

This Protective Order, until it is entered by the Court, and even if it is never

entered by the Court, shall be deemed to be an enforceable agreement between the Parties, except
that either Party may apply to the Court to challenge a confidentiality designation.

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Dated: _, 2014

LICHTEN & LISS-RIORDAN, P.C.

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By:

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Dated: _, 2014

/s/ Shannon Liss-Riordan_________
Shannon Liss-Riordan
Attorneys for Plaintiffs

MORGAN, LEWIS & BOCKIUS LLP

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By: __/s/ Stephen L. Taeusch______
Stephen L. Taeusch
Attorneys for Defendant

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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11/26/14
DATED: ________________________

UNIT
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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC

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EXHIBIT A

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Acknowledgement and Agreement to Be Bound by Protective Order:

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I, ____________________, acknowledge that I have received a copy of the Stipulated
Confidentiality Agreement and Protective Order (Order) in the lawsuit Douglas O’Connor, et al.,
v. Uber Technologies, Inc., pending in United States District Court, Case No. 13-03826-EMC.
Having read and understood its terms, I agree to be bound by the Order and consent to the
jurisdiction of said Court for any proceeding to enforce the terms of the Order.

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I further agree that, within thirty (30) days after my responsibilities relating to this case
end, I will destroy all copies of any confidential documents that were provided to me in this case.

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Name of individual:
Present occupation/job description:
Name of Company or Firm:
Address:
Dated:

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Signature

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STIPULATED PROTECTIVE ORDER
Case No. CV 13-03826-EMC