Koller v. Med Foods, Inc. et al

Filing 40

STIPULATED PROTECTIVE ORDER. Signed by Judge Richard Seeborg on 10/14/14. (cl, COURT STAFF) (Filed on 10/14/2014)

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GUTRIDE SAFIER LLP

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ADAM J. GUTRIDE (State Bar No. 181446)
SETH A. SAFIER (State Bar No. 197427)
MARIE MCCRARY (State Bar No. 262670)
KRISTEN G. SIMPLICIO (State Bar No. 263291)
835 Douglass Street
San Francisco, California 94114
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff, SCOTT KOLLER
FULBRIGHT & JAWORSKI LLP
JEFFREY B. MARGULIES (State Bar No. 126002)
STEPHANIE A. STROUP (State Bar No. 235071)
JULIA B. GLAZER (State Bar No. 277316)
555 South Flower Street
Forty-First Floor
Los Angeles, California 90071
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant DEOLEO USA, INC., f/k/a Med
Foods, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SCOTT KOLLER, an individual, on behalf of
himself, the general public and those similarly
situated,

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Plaintiff,
v.
DEOLEO USA, INC.; and MED FOODS, INC.,
Defendants.

Case No. 3:14-cv-02400-RS
[PROPOSED] STIPULATED PROTECTIVE
ORDER

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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure and from use for any

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purpose other than prosecuting this litigation may be warranted. Accordingly, Plaintiff Scott Koller

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(“Plaintiff”) and Defendant Deoleo USA, Inc. (f/k/a Med Foods, Inc.) (“Defendant”) and any future

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defendants in the above-titled action who agree in writing to be bound by this Stipulated Protective Order

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(the “Parties,” which term shall include their counsel), hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order (“Order”). The Parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The Parties further acknowledge, as set forth in Section 14.4, below,

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that the Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets

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forth the procedures that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

items under this Order.

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2.2

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

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stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure

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26(c).

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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

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY.”

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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, transcripts,

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and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.
2.6

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

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litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant

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in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and (3) at the time

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of retention, is not anticipated to become an employee of a Party or of a Party’s competitor.
2.7

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

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extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-Party

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would create a substantial risk of serious harm that could not be avoided by less restrictive means.
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not include Outside Counsel of Record or any other outside counsel.
2.9

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

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

not named as a Party to this action.
2.10

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

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represent or advise a Party and have appeared in this action on behalf of that Party or are affiliated with a

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law firm which has appeared on behalf of that Party.
2.11

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retained experts, and Outside Counsel of Record (and their support staffs).
2.12

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

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

this action.
2.13

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Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or

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retrieving data in any form or medium) and their employees and subcontractors.
2.14

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Party.

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3.

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

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SCOPE
The protections conferred by this Order cover not only Protected Material (as defined above), but

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also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by this Order do not cover

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the following 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 result of

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

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

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by the Receiving Party after the disclosure from a source who obtained the information lawfully and under

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no obligation of confidentiality to the Designating Party. Notwithstanding any other provision of this Order,

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if the need arises during trial or at any hearing before the Court for any Party to disclose Protected Material,

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the Parties shall confer and attempt to agree before any court trial or hearing regarding the procedures for

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which Protected Material may be used or introduced into evidence at such trial or hearing. Upon reaching

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agreement, the Parties shall give notice of the terms of such agreement to each third party producing

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Protected Material which may be used or introduced at such trial or hearing. Because it would affect the

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public availability of material used at a trial or hearing, any such agreement will be effective only upon

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Court approval. Absent agreement of the Parties, any Party upon reasonable notice to the Designating Party

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may move the Court to issue an order governing the use of Protected Information at a trial or hearing.

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4.

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

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DURATION

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

DESIGNATING PROTECTED MATERIAL
5.1

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

Party that designates information or items for protection under this Order must take care to limit any such
designation to specific material that qualifies under the appropriate standards. To the extent it is practical to

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do so, the Designating Party must designate for protection only those parts of material, documents, items, or

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

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communications for which protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be

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clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or

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retard the case development process or to impose unnecessary expenses and burdens on other Parties)

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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 for

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protection do not qualify for protection at all or do not qualify for the level of protection initially asserted,

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that Designating Party must promptly notify all other 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 (see, e.g.,

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second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery

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Material that qualifies for protection under this Order must be clearly so designated before the material is

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disclosed or produced.

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

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transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that

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contains protected material. If only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins) and must specify, for each portion, the level of protection being asserted.

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A Party or Non-Party that makes original documents or materials available for inspection need not

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designate them for protection until after the inspecting Party has indicated which material it would like

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copied and produced. During the inspection and before the designation, all of the material made available

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for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

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

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

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producing the specified documents, the Producing Party must affix the appropriate legend

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that

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contains Protected Material. If only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins) and must specify, for each portion, the level of protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, within thirty

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(30) days of receipt of the certified deposition transcript, any Party may mark as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any portion of the deposition transcript

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containing such information. The Party seeking to so mark the deposition transcript after the certified

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transcript has been prepared shall promptly notify all persons who were present at the deposition of its intent

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to do so, shall instruct the court report to conform the deposition transcript, and shall bear all reasonable

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costs related thereto. Transcripts containing Protected Material shall have an obvious legend on the title

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page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages

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(including line numbers as appropriate) that have been designated as Protected Material and the level of

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protection being asserted by the Designating Party. The Designating Party shall inform the court reporter of

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these requirements. Any transcript that is prepared before the expiration of the 30-day period for designation

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shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period,

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the transcript shall be treated only as actually designated.

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A Designating Party may de-designate any portion of the deposition transcript that the Party

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previously had designated as Protected Material, by promptly notifying in writing all other Parties and all

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persons who were present at the deposition of its intent to de-designate. The notice shall identify with

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specificity the portion of portions of the transcript that no longer are designated as Protected Material. The

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Designating Party shall instruct the court reporter to produce a new certified copy of the deposition

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transcript that removes any confidentiality designations as appropriate, and shall bear all reasonable costs

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related thereto.

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Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or other
proceeding to include Protected Material so that the other Parties can ensure that only authorized individuals

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those

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proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation

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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
(c) for information produced in some form other than documentary and for any other

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

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containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and

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specify the level of protection being asserted.

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5.3

Inadvertent Failures to Designate. If a Designating Party inadvertently produces Protected

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Material without designating it as such in accordance with this Order, the Designating Party shall notify all

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Receiving Parties of the proper designation of the Protected Material as soon as practical after discovery of

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the error by the Designating Party. The Designating Party shall provide the Receiving Parties with a

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replacement of the Protected Material marked in accordance with this Order. Upon receipt of the designated

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document or information: (a) the document or information shall be treated by the Receiving Parties as if it

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had been timely designated as Protected Material under this Order; and (b) the Receiving Parties shall use

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reasonable efforts to identify any other persons or entities to whom the information in question was given.

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It shall then be the burden of the Receiving Parties to collect in good faith all such Protected Information

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from persons and entities who would not have been entitled access thereto if the document or information

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had been so designated at the outset. The Receiving Parties shall use reasonable efforts to protect from

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disclosure any unmarked copies of the Protected Material in their possession, by destroying or returning to

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the Designating Party any unmarked copies of the Protected Information in their possession. The

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inadvertent disclosure or inadvertent mis-marking by a Designating Party of documents or information that

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the Designating Party believes to be confidential shall not automatically be deemed a waiver in whole or in

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part of the Designating Party’s claim of confidentiality, either as to the specific document or information

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disclosed or as to any other document or information relating thereto or concerning the same or related

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subject matter. However, any Party may claim that the intentional disclosure of Protected Material by the

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Designating Party to anyone other than the Designating Party and its counsel, without the confidential

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designation, be deemed a waiver of any claimed protection.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at 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 significant

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

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designation by electing not to mount a challenge promptly after the original designation is disclosed.
6.2

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

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providing written notice of each designation it is challenging and describing the basis for each challenge. If

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the basis of the Challenging Party’s challenge is the same for a group of documents, the Challenging Party

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may provide written notice of the group of documents challenged and the basis for the challenge to the

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designation of the group of documents. To avoid ambiguity as to whether a challenge has been made, the

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

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paragraph of the Order. 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 sufficient)

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within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis

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for its belief that the confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to

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the next stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely

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manner.

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6.3

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

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the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in

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compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or

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within 14 days of the Parties agreeing that the meet and confer process will not resolve their dispute,

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whichever is earlier. 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 in the preceding paragraph. Failure by

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the Designating Party to make such a motion including the required declaration within 21 days (or 14 days,

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if applicable) shall automatically waive the confidentiality designation for each challenged designation. In

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addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if

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there is good cause for doing so, including a challenge to the designation of a deposition transcript or any

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portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements imposed by the

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preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating Party.

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

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expenses and burdens on other Parties) may expose the Challenging Party to sanctions. Unless the

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Designating Party has waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, the Parties shall continue to afford the material in question the level of

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protection to which it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
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, defending,

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or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

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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 the

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

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item designated “CONFIDENTIAL” only to:

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

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said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto

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as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving Party

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

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

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Bound” (Exhibit A);
(d) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(e) the court and its personnel;

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(f) court reporters and their staff, professional jury or trial consultants, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) during their depositions, witnesses in the action to whom disclosure is reasonably

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

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otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Order; and
(h) the author or recipient of a document containing the information or a custodian or other

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person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

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or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of

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said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto

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as Exhibit A;

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(b) Experts (as defined in this Order) of the Receiving Party (1) to whom disclosure is

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reasonably necessary for this litigation, and (2) who have signed the “Acknowledgment and Agreement to

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

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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, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(f) the author or recipient of a document containing the information or a custodian or other

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person who otherwise possessed or knew the information.
8.

DISCUSSION WITH CLIENTS

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In the event that a Receiving Party’s counsel believes in good faith that it is reasonable to consult

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with its client (or in the case of a corporate client, an officer or employee thereof), who would not otherwise

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be permitted access, about a document or information designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” that directly identifies such client, officer or employee, counsel may consult

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with such client, officer or employee about the portion of such document or information that directly

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identifies such client, officer or employee, so long as: (a) the consultation does not disclose specifically

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HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, but only the general subject matter of the

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document or information, and (b) the document or information itself or any other portion thereof is not

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given or disclosed to such client, officer or employee, and (c) such client, officer or employee has signed an

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Acknowledgment and Agreement to Be Bound” (Exhibit A).

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9.

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PROTECTED
LITIGATION

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED

IN

OTHER

If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy

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of the subpoena or court order;

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

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other litigation that some or all of the material covered by the subpoena or order is subject to this Order.

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Such notification shall include a copy of this Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena

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or court order shall not produce any information designated in this action as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the court from

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which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court of its confidential

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material – 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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10.

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

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

this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.” Such information produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a
Non-Party from seeking additional protections.
(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 agreement with the NonParty 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 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 Order in this litigation, the
relevant discovery request(s), and a reasonably specific description of the information requested; and
3. make the information requested available for inspection by the Non-Party.

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If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving

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the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential

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information responsive to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court. Absent a court order to

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the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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 Order, the Receiving Party must

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immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or

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

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12.

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INADVERTENT
MATERIAL

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

PROTECTED

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.

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13.

SANCTIONS

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Intentional disclosure of Protected Material or other violation of this Order by a Party or other

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person authorized to receive Protected Material pursuant to this Order may subject the violating person to

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sanctions for contempt of court, as well as any other statutory or common law remedies that may be

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available to the Designating Party.

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14.

14.1

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

modification by the court in the future.
14.2

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MISCELLANEOUS

Right to Assert Other Objections. By stipulating to the entry of this Order no Party waives

any right it otherwise would have to object to disclosing or producing any information or item on any

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ground not addressed in this Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Order.
14.3

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No Waiver of Right to Appropriately Withhold or Redact. Notwithstanding the provisions

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of this Order, Designating Parties may redact from any produced information, whether designated as

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Protected Material or not, any information containing privileged material or any irrelevant trade secrets or

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other irrelevant highly confidential research, development or commercial information, or any other data

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protected from disclosure by State or Federal regulations. If, after reviewing information containing a

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redaction, a Receiving Party has a good faith basis for challenging the redaction, the Parties shall initially

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attempt to resolve the issue through discussions. If those discussions prove unsuccessful, the challenging

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Party may move for a ruling by the Court on whether the information is entitled to redaction, which may,

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where legally permitted, necessitate an in camera inspection of the document in non-redacted form by the

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Court. If the Court orders that the redacted portion of the information should remain redacted, then the

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redacted portion of said Discovery Material may not be used as evidence by any Party at trial or at a hearing

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and may not be relied upon by any Party’s Expert. If the Court orders that the redacted portion of the

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information is not entitled to redaction, and if the Court orders the Designating Party to produce the

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information without redaction, then the Designating Party shall produce the information in non-redacted

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form.

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redaction shall have no effect on the status of the information as Protected Information.

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Unless expressly ordered otherwise by the Court, a finding that information is not entitled to

14.4

Filing Protected Material. Without written permission from the Designating Party or a court

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order secured after appropriate notice to all interested persons, a Party may not file in the public record in

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this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a

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sealing order will issue only upon a request establishing that the Protected Material at issue is privileged,

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protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request

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to file Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the

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Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2)

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unless otherwise instructed by the court.

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15.

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

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Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used

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in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by

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category, where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

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the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled

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to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Order as set forth in Section 4

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(DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: October 14, 2014

/s/ Seth A. Safier
Seth A. Safier, Esq.
Attorneys for Plaintiff

/

DATED: October 14, 2014

/s/ Stephanie A. Stroup
Stephanie A. Stroup
Attorneys for Defendant

/

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: ________________________ _____________________________________
10/14/14
Judge Richard Seeborg
United States District/Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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

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

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of California on [date] in the case of Koller v. Deoleo USA, Inc., Case No. 3:14-cv-02400-EDL. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject

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

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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 Order,

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

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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DATED: October 14, 2014

/s/ Marie A. McCrary
GUTRIDE SAFIER LLP
Attorneys for Plaintiff

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