Dunn v. Teachers Insurance & Annuity Association of America, A New York Entity et al

Filing 104

STIPULATION AND ORDER re 99 STIPULATION WITH PROPOSED ORDER re Protective Order for Standard Litigation filed by Pride Technologies, LLC, Experis US, Inc., Teachers Insurance & Annuity Association of America. Signed by Judge Edward M. Chen on 10/27/14. (bpf, COURT STAFF) (Filed on 10/27/2014)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 KATHLEEN DUNN and PATRICK CAMPBELL, individually and on behalf of all others similarly situated, Plaintiffs, 7 10 United States District Court Northern District of California 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA, a New York entity; EXPERIS US, INC.; PRIDE TECHNOLOGIES, LLC; and DOES 1 to 10, inclusive Defendants. 12 13 3:13-cv-05456-EMC v. 8 9 Case No. 1. PURPOSES AND LIMITATIONS 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, as set forth in Section 12.3, below, 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. 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. ATL 20166022v3 1 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 2 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 3 Civil Procedure 26(c). 4 5 6 7 8 9 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to 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, testimony, 10 transcripts, and tangible things), that are produced or generated in disclosures or responses to 11 discovery in this matter. 12 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 13 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 14 consultant in this action. 15 16 17 18 19 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 20 but are retained to represent or advise a party to this action and have appeared in this action on 21 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 22 23 24 25 26 27 2.10 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 28 ATL 20166022v3 2 1 storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.13 2 3 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 4 Receiving Party: a Party that receives Disclosure or Discovery Material from a 5 Producing Party. 6 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 7 8 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 9 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 10 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 11 However, the protections conferred by this Stipulation and Order do not cover the following 12 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 13 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 14 publication not involving a violation of this Order, including becoming part of the public record 15 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 16 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 17 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 18 Protected Material at trial shall be governed by a separate agreement or order. 19 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 20 21 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 22 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 23 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 24 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 25 time limits for filing any motions or applications for extension of time pursuant to applicable law. 26 5. 27 DESIGNATING PROTECTED MATERIAL 5.1 28 ATL 20166022v3 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 3 1 Non-Party that designates information or items for protection under this Order must take care to 2 limit any such designation to specific material that qualifies under the appropriate standards. The 3 Designating Party must designate for protection only those parts of material, documents, items, or 4 oral or written communications that qualify – so that other portions of the material, documents, 5 items, or communications for which protection is not warranted are not swept unjustifiably within 6 the ambit of this Order. 7 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 8 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 9 encumber or retard the case development process or to impose unnecessary expenses and burdens on 10 other parties) expose the Designating Party to sanctions. 11 If it comes to a Designating Party’s attention that information or items that it designated for 12 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 13 that it is withdrawing the mistaken designation. 14 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 15 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 16 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 17 designated before the material is disclosed or produced. 18 19 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 20 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 21 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 22 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 23 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 24 A Party or Non-Party that makes original documents or materials available for inspection need not 25 designate them for protection until after the inspecting Party has indicated which material it would 26 like copied and produced. During the inspection and before the designation, all of the material made 27 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 28 ATL 20166022v3 4 1 identified the documents it wants copied and produced, the Producing Party must determine which 2 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 3 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 4 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 5 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 6 appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 7 8 Designating Party identify all protected testimony within ten (10) business days after receipt of the 9 transcript containing such testimony. (c) for information produced in some form other than documentary and for any other 10 11 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 12 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 13 portion or portions of the information or item warrant protection, the Producing Party, to the extent 14 practicable, shall identify the protected portion(s). 5.3 15 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items does not, standing alone, waive the Designating Party’s 17 right to secure protection under this Order for such material. Upon timely correction of a 18 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 19 accordance with the provisions of this Order. 20 6. 21 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 24 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 25 confidentiality designation by electing not to mount a challenge promptly after the original 26 designation is disclosed. 27 6.2 28 ATL 20166022v3 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 5 1 by providing written notice of each designation it is challenging and describing the basis for each 2 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 3 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 4 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 5 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 6 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 7 Party must explain the basis for its belief that the confidentiality designation was not proper and 8 must give the Designating Party an opportunity to review the designated material, to reconsider the 9 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 10 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 11 has engaged in this meet and confer process first or establishes that the Designating Party is 12 unwilling to participate in the meet and confer process in a timely manner. 13 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 14 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 15 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 16 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 17 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 18 competent declaration affirming that the movant has complied with the meet and confer 19 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 20 motion including the required declaration within 21 days (or 14 days, if applicable) shall 21 automatically waive the confidentiality designation for each challenged designation. In addition, the 22 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 23 good cause for doing so, including a challenge to the designation of a deposition transcript or any 24 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 25 competent declaration affirming that the movant has complied with the meet and confer 26 requirements imposed by the preceding paragraph. 27 28 ATL 20166022v3 6 1 The burden of persuasion in any such challenge proceeding shall be on the Designating 2 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 4 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 5 retain confidentiality as described above, all parties shall continue to afford the material in question 6 the level of protection to which it is entitled under the Producing Party’s designation until the court 7 rules on the challenge. 8 7. 9 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 10 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 12 the categories of persons and under the conditions described in this Order. When the litigation has 13 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 14 DISPOSITION). 15 16 17 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 18 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 19 information or item designated “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 21 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 22 this litigation; 23 24 25 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation; (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 26 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 27 to Be Bound” (Exhibit A); 28 ATL 20166022v3 7 1 (d) the court and its personnel; 2 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 3 Professional Vendors to whom disclosure is reasonably necessary for this litigation; (f) during their depositions, witnesses in the action to whom disclosure is reasonably 4 5 necessary, unless otherwise agreed by the Designating Party or ordered by the court. Pages of 6 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 7 separately bound by the court reporter and may not be disclosed to anyone except as permitted under 8 this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or 9 10 other person who otherwise possessed or knew the information. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 12 LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation that compels 14 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 15 must: 16 17 18 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 19 other litigation that some or all of the material covered by the subpoena or order is subject to this 20 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 21 22 23 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 24 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 25 before a determination by the court from which the subpoena or order issued, unless the Party has 26 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 27 expense of seeking protection in that court of its confidential material – and nothing in these 28 ATL 20166022v3 8 1 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 2 disobey a lawful directive from another court. 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 4 (a) The terms of this Order are applicable to information produced by a Non-Party in this 5 6 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 7 connection with this litigation is protected by the remedies and relief provided by this Order. 8 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 9 protections. 10 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 11 Party’s confidential information in its possession, and the Party is subject to an agreement with the 12 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that some or 13 14 all of the information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 15 16 this litigation, the relevant discovery request(s), and a reasonably specific description of the 17 information requested; and 18 (3) make the information requested available for inspection by the Non-Party. 19 (c) If the Non-Party fails to object or seek a protective order from this court within 14 20 days of receiving the notice and accompanying information, the Receiving Party may produce the 21 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 22 seeks a protective order, the Receiving Party shall not produce any information in its possession or 23 control that is subject to the confidentiality agreement with the Non-Party before a determination by 24 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 25 seeking protection in this court of its Protected Material. 26 10. 27 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 28 ATL 20166022v3 9 1 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 2 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 3 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 4 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 5 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 6 Be Bound” that is attached hereto as Exhibit A. 7 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 8 MATERIAL 9 11.1 When a Producing Party gives notice to Receiving Parties that certain inadvertently 10 produced material is subject to a claim of privilege or other protection, the obligations of the 11 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 12 is not intended to modify whatever procedure may be established in an e-discovery order that 13 provides for production without prior privilege review. 11.2 14 Pursuant to Federal Rule of Evidence 502(d) and (e), the parties agree that if either 15 party realizes that it has inadvertently produced or disclosed a document that it considers to be 16 covered by the attorney-client privilege, work-product immunity, or other applicable privilege or 17 immunity, it may contact the Receiving Party in writing and notify it of such inadvertent production 18 or disclosure. Such inadvertent production or disclosure shall not constitute a waiver of the 19 applicable privilege or immunity if the Producing Party: (a) notifies the Receiving Party in writing of 20 the inadvertent production or disclosure and (b) sufficiently identifies the inadvertently produced 21 document by bates number or date, author(s), and recipient(s) of the document. Any party receiving 22 such notice shall respond within five (5) business days by either (i) objecting to the claim of 23 privilege or (ii) returning the inadvertently produced document(s) and all copies to counsel for the 24 Producing Party. Any objections to a claim of privilege or immunity shall be resolved upon 25 application to the Court by the Producing Party. 26 12. 27 MISCELLANEOUS 12.1 28 ATL 20166022v3 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 10 1 its modification by the court in the future. 12.2 2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 3 no Party waives any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 5 Party waives any right to object on any ground to use in evidence of any of the material covered by 6 this Protective Order. 12.3 7 Filing Protected Material. Without written permission from the Designating Party or a 8 court order secured after appropriate notice to all interested persons, a Party may not file in the 9 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 10 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 11 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant 12 to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the 13 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 14 protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 15 to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information 16 in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 17 13. 18 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 19 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 20 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 21 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 22 the Protected Material is returned or destroyed, the Receiving Party must submit a written 23 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 24 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 25 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 27 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 28 ATL 20166022v3 11 1 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 2 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 3 and expert work product, even if such materials contain Protected Material. Any such archival copies 4 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 5 Section 4. 6 7 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 9 DATED: October 21, 2014 /s/ Gabriel Assaad Attorneys for Plaintiffs DATED: October 21, 2014 /s/ Peter N. Hall Attorneys for Defendant Teachers Insurance and Annuity Association of America DATED: October 21, 2014 /s/ Christopher Killens Attorneys for Defendant Experis US, Inc. DATED: October 21, 2014 /s/ Fraser McAlpine Attorneys for Defendant Pride Technologies, LLC 10 11 12 13 14 16 17 18 19 PURSUANT TO STIPULATION, IT IS SO ORDERED. October 27, 2014 DATED: ________________________ NO _____________________________________ United States District/Magistrate Judge en d M. Ch e Edwar Judg 24 RT 25 FO 23 TED GRAN R NIA 22 UNIT ED 21 RT U O S 20 S DISTRICT TE C TA 26 27 28 ATL 20166022v3 12 A H ER LI 15 N F D IS T IC T O R C 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern 6 District of California on _________ [date] in the case of Kathleen Dunn et al. v. Teachers Insurance 7 and Annuity Association of America et al., Case No. 3:13-cv-05456-EMC, pending in the United 8 States District Court for the Northern District of California. I agree to comply with and to be bound 9 by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to 10 so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the provisions of 13 this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the Northern 15 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 16 if such enforcement proceedings occur after termination of this action. 17 18 19 Date: ______________________________________ 20 City and State where sworn and signed: _________________________________ 21 22 Printed name: _______________________________ 23 24 Signature: __________________________________ 25 26 27 28 ATL 20166022v3 13

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