Flores et al v. State Farm General Insurance Company

Filing 30

Order by Hon. Vince Chhabria granting 29 Stipulated Protective Order.(knm, COURT STAFF) (Filed on 9/5/2014)

1 STEPHEN M. HAYES (SBN 83583)
STEPHEN P. ELLINGSON (SBN 136505)
2 CHERIE M. SUTHERLAND (SBN 217992)
HAYES SCOTT BONINO ELLINGSON & McLAY, LLP
3 203 Redwood Shores Pkwy., Ste. 480
Redwood City, California 94065
4 Telephone: [phone]
Facsimile: 650.637.8071
5 Attorneys for Defendant
STATE FARM GENERAL INSURANCE COMPANY
6
J. EDWARD KERLEY (SBN 175695)
7 DYLAN L. SCHAFFER (SBN 153612)
HEREFORD KERLEY LLP
8 1939 Harrison Street, Suite 500
Oakland, California 94612
9 Telephone: [phone]
Facsimile: 510.228-0350
10
Attorney for Plaintiffs
11 JOSE and YADIRA FLORES dba LA ROSA MARKET
12
13
14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JOSE FLORES, an individual, and
15 YADIRA FLORES, an individual, dba
LA ROSA MARKET,
16
Plaintiffs,
17
v.
18
STATE FARM GENERAL INSURANCE
19 COMPANY, an Illinois Company, and DOES
1through 15,
20
Defendants.
21

CASE NO. CV 13-05348 WHO
STIPULATED PROTECTIVE
ORDER

22
23
24
25
26
27
28
544408

STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 1.

PURPOSES AND LIMITATIONS

2

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

3 confidential, proprietary, or private information for which special protection from public disclosure
4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective
6 Order. The parties acknowledge that this Order does not confer blanket protections on all
7 disclosures or responses to discovery and that the protection it affords from public disclosure and
8 use extends only to the limited information or items that are entitled to confidential treatment under
9 the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
10 that this Stipulated Protective Order does not entitle them to file confidential information under
11 seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that
12 will be applied when a party seeks permission from the court to file material under seal.
13 2.

DEFINITIONS

14

2.1

Challenging Party: a Party or Non-Party that challenges the designation of

15 information or items under this Order.
16

2.2

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

17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
18 of Civil Procedure 26(c).
19

2.3

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

20 well as their support staff).
21

2.4

Designating Party: a Party or Non-Party that designates information or items

22 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
23

2.5

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

24 medium or manner in which it is generated, stored, or maintained (including, among other things,
25 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
26 responses to discovery in this matter.
27

2.6

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

28 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert
544408

-1STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 witness or as a consultant in this action.
2

2.7

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

3 Counsel does not include Outside Counsel of Record or any other outside counsel.
4

2.8

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

5 legal entity not named as a Party to this action.
6

2.9

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

7 action but are retained to represent or advise a party to this action and have appeared in this action
8 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
9

2.10

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

10 employees, consultants, retained experts, and Outside Counsel of Record (and their support
11 staffs).
12

2.11

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

13 Material in this action.
14

2.12

Professional Vendors: persons or entities that provide litigation support

15 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
16 organizing, storing, or retrieving data in any form or medium) and their employees and
17 subcontractors.
18

2.13

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

19 “CONFIDENTIAL.”
20

2.14

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

21 Producing Party.
22 3.

SCOPE

23

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

24 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all
25 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
26 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
27 However, the protections conferred by this Stipulation and Order do not cover the following
28 information: (a) any information that is in the public domain at the time of disclosure to a
544408

-2STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
2 result of publication not involving a violation of this Order, including becoming part of the public
3 record through trial or otherwise; and (b) any information known to the Receiving Party prior to
4 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
5 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
6 use of Protected Material at trial shall be governed by a separate agreement or order.
7 4.

DURATION

8

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

9 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
10 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
11 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
12 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
13 including the time limits for filing any motions or applications for extension of time pursuant to
14 applicable law.
15 5.

DESIGNATING PROTECTED MATERIAL

16

5.1

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

17 Non-Party that designates information or items for protection under this Order must take care to
18 limit any such designation to specific material that qualifies under the appropriate standards. The
19 Designating Party must designate for protection only those parts of material, documents, items, or
20 oral or written communications that qualify – so that other portions of the material, documents,
21 items, or communications for which protection is not warranted are not swept unjustifiably within
22 the ambit of this Order.
23

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

24 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
25 unnecessarily encumber or retard the case development process or to impose unnecessary expenses
26 and burdens on other parties) expose the Designating Party to sanctions.
27

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

28 protection do not qualify for protection, that Designating Party must promptly notify all other
544408

-3STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 Parties that it is withdrawing the mistaken designation.
2

5.2

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

3 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
4 ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be
5 clearly so designated before the material is disclosed or produced.
6

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

7

8 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
9 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a
10 portion or portions of the material on a page qualifies for protection, the Producing Party also
11 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
12 margins).
13

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

14 need not designate them for protection until after the inspecting Party has indicated which material
15 it would like copied and produced. During the inspection and before the designation, all of the
16 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting
17 Party has identified the documents it wants copied and produced, the Producing Party must
18 determine which documents, or portions thereof, qualify for protection under this Order. Then,
19 before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL”
20 legend to each page that contains Protected Material. If only a portion or portions of the material
21 on a page qualifies for protection, the Producing Party also must clearly identify the protected
22 portion(s) (e.g., by making appropriate markings in the margins).
23

(b) for testimony given in deposition or in other pretrial or trial proceedings, that

24 the Designating Party identify on the record, before the close of the deposition, hearing, or
25 other proceeding, all protected testimony.
26

(c) for information produced in some form other than documentary and for any other

27 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
28 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
544408

-4STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 portion or portions of the information or item warrant protection, the Producing Party, to the
2 extent practicable, shall identify the protected portion(s).
3

5.3

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

4 designate qualified information or items does not, standing alone, waive the Designating
5 Party’s right to secure protection under this Order for such material. Upon timely correction of
6 a designation, the Receiving Party must make reasonable efforts to assure that the material is
7 treated in accordance with the provisions of this Order.
8 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

9

6.1

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

10 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
11 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
12 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
13 challenge a confidentiality designation by electing not to mount a challenge promptly after the
14 original designation is disclosed.
15

6.2

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

16 process by providing written notice of each designation it is challenging and describing the basis
17 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
18 notice must recite that the challenge to confidentiality is being made in accordance with this
19 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
20 good faith and must begin the process by conferring directly (in voice to voice dialogue; other
21 forms of communication are not sufficient) within 14 days of the date of service of notice. In
22 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
23 designation was not proper and must give the Designating Party an opportunity to review the
24 designated material, to reconsider the circumstances, and, if no change in designation is offered,
25 to explain the basis for the chosen designation. A Challenging Party may proceed to the next
26 stage of the challenge process only if it has engaged in this meet and confer process first or
27 establishes that the Designating Party is unwilling to participate in the meet and confer process in
28 a timely manner.
544408

-5STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

2 intervention, the Challenging Party shall file and serve a motion to challenge confidentiality under
3 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of
4 the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
5 process will not resolve their dispute, whichever is earlier. Each such motion must be
6 accompanied by a competent declaration affirming that the movant has complied with the meet
7 and confer requirements imposed in the preceding paragraph. Failure by the Challenging Party to
8 make such a motion including the required declaration within 21 days (or 14 days, if applicable)
9 shall automatically waive challenging the confidentiality designation for each challenged
10 designation. Any motion brought pursuant to this provision must be accompanied by a competent
11 declaration affirming that the movant has complied with the meet and confer requirements
12 imposed by the preceding paragraph.
13

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

14 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
15 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
16 All parties shall continue to afford the material in question the level of protection to which it is
17 entitled under the Producing Party’s designation until the court rules on the challenge.
18 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

19

7.1

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

20 produced by another Party or by a Non-Party in connection with this case only for prosecuting,
21 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
22 the categories of persons and under the conditions described in this Order. When the litigation has
23 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
24 DISPOSITION).
25

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

26 a secure manner that ensures that access is limited to the persons authorized under this Order.
27

7.2

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

28 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
544408

-6STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 information or item designated “CONFIDENTIAL” only to:
2

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

3 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
4 information for this litigation and who have signed the “Acknowledgment and Agreement to Be
5 Bound” that is attached hereto as Exhibit A;
6

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

7 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9

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

10 reasonably necessary for this litigation and who have signed the “Acknowledgment and
11 Agreement to Be Bound” (Exhibit A);
12

(d) the court and its personnel;

13

(e) court reporters and their staff, professional jury or trial consultants, mock jurors,

14 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
15 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
16

(f) the author or recipient of a document containing the information or a custodian

17 or other person who otherwise possessed or knew the information.
18 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

19

OTHER LITIGATION

20

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

21 compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”
22 that Party must:
23

(a) promptly notify in writing the Designating Party. Such notification shall include

24 a copy of the subpoena or court order;
25

(b) promptly notify in writing the party who caused the subpoena or order to issue in

26 the other litigation that some or all of the material covered by the subpoena or order is subject to
27 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
28 and
544408

-7STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

2 Designating Party whose Protected Material may be affected.
3

If the Designating Party timely seeks a protective order, the Party served with the

4 subpoena or court order shall not produce any information designated in this action as
5 “CONFIDENTIAL” before a determination by the court from which the subpoena or order
6 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
7 shall bear the burden and expense of seeking protection in that court of its confidential material –
8 and nothing in these provisions should be construed as authorizing or encouraging a Receiving
9 Party in this action to disobey a lawful directive from another court.
10 9.

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

11

THIS LITIGATION

12

(a) The terms of this Order are applicable to information produced by a Non-Party in

13 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
14 connection with this litigation is protected by the remedies and relief provided by this Order.
15 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
16 additional protections.
17

(b) In the event that a Party is required, by a valid discovery request, to produce a

18 Non- Party’s confidential information in its possession, and the Party is subject to an agreement
19 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
20

(1) promptly notify in writing the Requesting Party and the Non-Party that some

21 or all of the information requested is subject to a confidentiality agreement with a Non-Party;
22

(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order

23 in this litigation, the relevant discovery request(s), and a reasonably specific description of the
24 information requested; and
25

(3) make the information requested available for inspection by the Non-Party.

26

(c) If the Non-Party fails to object or seek a protective order from this court within 14

27 days of receiving the notice and accompanying information, the Receiving Party may produce the
28 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
544408

-8STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 seeks a protective order, the Receiving Party shall not produce any information in its possession or
2 control that is subject to the confidentiality agreement with the Non-Party before a determination
3 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and
4 expense of seeking protection in this court of its Protected Material.
5 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

6

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

7 Material to any person or in any circumstance not authorized under this Stipulated Protective
8 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
9 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
10 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
11 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
12 Agreement to Be Bound” that is attached hereto as Exhibit A.
13 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

14

MATERIAL

15

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

16 produced material is subject to a claim of privilege or other protection, the obligations of the
17 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
18 is not intended to modify whatever procedure may be established in an e-discovery order that
19 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
20 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
21 communication or information covered by the attorney-client privilege or work product protection,
22 the parties may incorporate their agreement in the stipulated protective order submitted to the
23 court.
24 12.

MISCELLANEOUS

25

12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

26 seek its modification by the court in the future.
27

12.2

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

28 Order no Party waives any right it otherwise would have to object to disclosing or producing any
544408

-9STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

1 information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
2 no Party waives any right to object on any ground to use in evidence of any of the material
3 covered by this Protective Order.
4

12.3

Filing Protected Material. Without written permission from the Designating Party

5 or a court order secured after appropriate notice to all interested persons, a Party may not file in the
6 public record in this action any Protected Material. A Party that seeks to file under seal any
7 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
8 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
9 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing
10 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled
11 to protection under the law. If a Receiving Party's request to file Protected Material under seal
12 pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the
13 information in the public record pursuant to Civil Local Rule 79-5€ unless otherwise instructed by
14 the court.
15 13.

FINAL DISPOSITION

16

Within 60 days after the final disposition of this action, as defined in paragraph 4,

17 plaintiffs and their counsel must return all Protected Material to State Farm General Insurance
18 Company or destroy such material. As used in this subdivision, “all Protected Material” includes
19 all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any
20 of the Protected Material. Whether the Protected Material is returned or destroyed, plaintiffs’
21 counsel must submit a written certification to State Farm General Insurance Company by the 60
22 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that
23 was returned or destroyed and (2) affirms that plaintiffs and their counsel have not retained any
24 copies, abstracts, compilations, summaries or any other format reproducing or capturing any of
25 the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival
26 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
27 correspondence, deposition and trial exhibits, expert reports, attorney work product, and
28 consultant and expert work product, even if such materials contain Protected Material. Any such
544408

-10STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO

S

RT

ia

A

H

ER

Chhabr

FO

NO

ince
J u d ge V

R NIA

ERED

O ORD
IT IS S

LI

UNIT
ED

RT
U
O

September 5

S DISTRICT
TE
C
TA

N

D IS T IC T
R

OF

C

1
EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4
5
6
7
8
9
10

I,

[print or type full name], of

[print or

type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order that was issued by the United States District Court for the Northern
District of California on [date] in the case of Flores v. State Farm General Insurance Company,
Case No. CV 13-05348 WHO. I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will

11

not disclose in any manner any information or item that is subject to this Stipulated Protective

12

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

13 I further agree to submit to the jurisdiction of the United States District Court for the Northern
14 District of California for the purpose of enforcing the terms of this Stipulated Protective Order,
15 even if such enforcement proceedings occur after termination of this action.
16 I hereby appoint

[print or type full name] of

17

[print or type full address and telephone

18 number] as my California agent for service of process in connection with this action or any
19 proceedings related to enforcement of this Stipulated Protective Order.
20
Date:
21
City and State where sworn and signed:
22
23
Printed name:
24
25
Signature:
26
27
28
544408

-12STIPULATION AND PROTECTIVE ORDER
CASE NO. CV 13-05348 WHO