Willis v. Avis Budget Group, Inc. et al

Filing 32

ORDER by Judge Haywood S. Gilliam, Jr. Granting 31 Stipulated Protective Order with Clawback Agreement. (ndrS, COURT STAFF) (Filed on 4/22/2015)

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MARCUS J. BRADLEY, Bar No. 174156
[e-mail]
KILEY L. GROMBACHER, Bar No. 245960
[e-mail]
MARLIN & SALTZMAN
29229 Canwood Street, Suite 208
Agoura Hills, California 91301
Telephone:
818.991.8080
Facsimile:
818.991.8081
Attorneys for Plaintiff
TYWAIN WILLIS
Additional counsel for Plaintiff appears
on the following page
JODY A. LANDRY, Bar No. 125743
[e-mail]
JERRILYN T. MALANA, Bar No. 195260
[e-mail]
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, California 92101.3577
Telephone:
619.232.0441
Facsimile:
619.232.4302
Attorneys for Defendants
AVIS BUDGET GROUP, INC., AVIS BUDGET
CAR RENTAL, LLC, and AB CAR RENTAL
SERVICES, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TYWAIN WILLIS, on behalf of himself,
all others similarly situated, and the general
public,
Plaintiff,

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

v.

Case No. 14-cv-03926-HSG
(Alameda Superior Court Case No.
RG14734826)
STIPULATED PROTECTIVE ORDER
WITH CLAWBACK AGREEMENT

AVIS BUDGET GROUP, INC., a
Delaware corporation, AVIS BUDGET
CAR RENTAL, LLC, a Delaware limited
liability company; AB CAR RENTAL
SERVICES, INC., a Delaware corporation;
and DOES 1-50, inclusive,
Defendants.
CASE NO. 14-CV-03926-HSG

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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Additional counsel for Plaintiff:

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SHAUN SETAREH, Bar No. 204514
[e-mail]
TUVIA KOROBKIN, Bar No. 268066
[e-mail]
NEIL LARSEN, Bar No. 276490
[e-mail]
SETAREH LAW GROUP
9454 Wilshire Blvd. Suite 907
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: 310.888.0109

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Attorneys for Plaintiff
TYWAIN WILLIS
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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

2.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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Plaintiff TYWAIN WILLIS (“Plaintiff”) and Defendants AVIS BUDGET GROUP,

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INC., AVIS BUDGET CAR RENTAL, LLC, and AB CAR RENTAL SERVICES, INC.

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(“Defendants”) (collectively with Plaintiff as the “Parties”) agree to the following procedures to

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protect confidential, proprietary or private information.

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1.

PURPOSES AND LIMITATIONS

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

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

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

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the Parties hereby stipulate to and petition the Court to enter the following Stipulated Protective

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Order.

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The Parties agree to produce such documents only on the agreement that such
“CONFIDENTIAL” Information or Items will be disclosed only as provided herein.

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The Parties have agreed to stipulate to protect certain privileged and otherwise

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protected documents, data (including electronically stored information) and other information,

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including without limitation, metadata, against claims of waiver and inadvertent production in the

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event they are produced during the course of this litigation whether pursuant to a Court Order, a

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party’s discovery request or informal production.

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The Parties wish to comply with discovery deadlines and complete discovery as

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expeditiously as possible, while preserving and without waiving any evidentiary protections or

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privileges applicable to the information contained in the Discovery Material produced, including as

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against third parties and other federal and state proceedings, and in addition to their agreement, need

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the additional protections of a court order under Federal Rule of Evidence (“FRE”) 502(d) and (e) to

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do so.

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In order to comply with applicable discovery deadlines, a party may be required to

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produce certain categories of Discovery Material that have been subject to minimal or no attorney

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review. This Stipulated Protective Order is designed to foreclose any arguments that by making

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such Disclosure, the disclosure or production of Discovery Material subject to a legally recognized

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claim of privilege, including without limitation the attorney-client privilege, work-product doctrine,

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

3.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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or other applicable privilege:

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(a)

was not inadvertent by the Producing Party;

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(b)

that the Producing Party did not take reasonable steps to prevent the disclosure

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of privileged Protected Material

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(c)

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Disclosure; and/or

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(d)

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that the Producing Party did not take reasonable or timely steps to rectify such

that such disclosure acts as a waiver of applicable privileges or protections

associated with such Discovery Material.

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Because the purpose of this Stipulated Protective Order is to protect and preserve

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privileged Discovery Material, the Parties agree they are bound as follows from and after the date

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their counsel have signed it, even if such execution occurs prior to Court approval.

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The Parties seek the entry of an Order, pursuant to Federal Rule of Civil Procedure

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(“FRCP”) 26(c), governing the disclosure of documents and information therein pertaining to

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“CONFIDENTIAL” Information or Items on the terms set forth herein, as well as an Order, pursuant

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to FRE 502, governing the return of inadvertently produced Protected Material and data and

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affording them the protections of FRE 502(d) and (e), on the terms set forth herein. The Parties

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acknowledge that this Stipulated Protective Order does not confer blanket protections on all

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

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extends only to the limited information or items that are entitled to confidential treatment under the

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applicable legal principles. The Parties further acknowledge, as set forth in Section 12.3, below, that

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this Stipulated Protective Order does not entitle them to file confidential information under seal;

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Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the court to file material under seal.

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2.

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

DEFINITIONS
2.1

Challenging Party:

a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items (“Confidential Information”): information

(regardless of how it is generated, stored or maintained) or tangible things that qualify for protection
CASE NO. 14-CV-03926-HSG

4.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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under Federal Rule of Civil Procedure 26(c).
2.3

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

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or manner in which it is generated, stored, or maintained (including, among other things, documents,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

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

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

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consultant in this action.

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2.7

In-House Counsel: attorneys who are employees of a party to this action. In-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, including putative class members.
2.9

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

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but are retained to represent or advise a party to this action and have appeared in this action on

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

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2.10

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.
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Professional Vendors: persons or entities that provide litigation support services

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

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

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

2.13

Protected Material: any Disclosure or Discovery Material or other documents or

materials that are subject to attorney-client privilege, attorney-work product doctrine, or other
CASE NO. 14-CV-03926-HSG

5.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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applicable privilege whether or not designated as “CONFIDENTIAL”.

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2.14

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

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Producing Party.

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3.

SCOPE

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This Stipulated Protective Order will be entered pursuant to FRCP 26(c) and FRE 502. The

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protections conferred by this Stipulated Protective Order cover not only Protected Material and

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Confidential Information (as defined above), but also (1) any information copied or extracted from

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the same; (2) all copies, excerpts, summaries, or compilations of the same; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal the same. However, the

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protections conferred by this Stipulated Protective Order do not cover the following information: (a)

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any information that is in the public domain at the time of disclosure to a Receiving Party or

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

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not involving a violation of this Stipulated Protective Order, including becoming part of the public

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

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

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

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Protected Material and/or Confidential Material at trial shall be governed by a separate agreement or

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order.

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4.

DURATION

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

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Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

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dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment

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herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

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this action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

DESIGNATING CONDIENTIAL INFORMATION AND/OR PROTECTED MATERIAL
5.1

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

CASE NO. 14-CV-03926-HSG

6.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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Non-Party that designates information or items for protection under this Stipulated Protective Order

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must take care to limit any such designation to specific material that qualifies under the appropriate

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

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

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

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unjustifiably within the ambit of this Order.

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

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

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encumber or retard the case development process or to impose unnecessary expenses and burdens on

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other parties) expose the Designating Party to sanctions.

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

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

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that it is withdrawing the mistaken designation.

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5.2

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

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Protective Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Stipulated

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Protective Order must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Stipulated Protective Order requires:

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

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

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

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

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

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feasible.

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

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

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

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

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

7.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

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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 Stipulated

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Protective Order. Then, before producing the specified documents, the Producing Party must affix

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the “CONFIDENTIAL” legend to each page that contains Confidential Information and/or Protected

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Material when feasible.

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

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appropriate markings in the margins).

If only a portion or portions of the material on a page qualifies for

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

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

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proceeding, all protected testimony.

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(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.” If only a

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

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practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate.

If timely corrected, an inadvertent failure to

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

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right to secure protection under this Stipulated Protective Order for such material. Upon timely

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correction of a designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Stipulated Protective Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,

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

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

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designation is disclosed.

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

8.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

6.2

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

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

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to confidentiality is being made in accordance with this specific paragraph

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of the Stipulated Protective Order. The Parties shall attempt to resolve each challenge in good faith

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and must begin the process by conferring directly (in voice to voice dialogue; other forms of

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communication are not sufficient) within 14 days of the date of service of notice. In conferring, the

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Challenging Party must explain the basis for its belief that the confidentiality designation was not

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proper and must give the Designating Party an opportunity to review the designated material, to

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

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

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

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

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6.3

Judicial Intervention.

If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil

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Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the

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initial notice of challenge or within 14 days of the Parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a

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motion including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged designation. In addition, the

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Challenging Party may file a motion challenging a confidentiality designation at any time if there is

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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

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competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed by the preceding paragraph.

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LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

The burden of persuasion in any such challenge proceeding shall be on the Designating
CASE NO. 14-CV-03926-HSG

9.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

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

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

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

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retain confidentiality as described above, all parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until the court

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rules on the challenge.

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7.

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MATERIAL

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ACCESS TO AND USE OF CONFIDENTIAL INFORMATION AND/OR PROTECTED

7.1

Basic Principles. A Receiving Party may use Confidential Information and Protected

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Material that is disclosed or produced by another Party or by a Non-Party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Such Confidential

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Information and Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Stipulated Protective 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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Confidential Information and/or Protected Material must be stored and maintained by a

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Receiving Party at a location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

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

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

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information or item designated “CONFIDENTIAL” only to:

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

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

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information for this litigation;

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(b)

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

Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Stipulated Protective Order) of the Receiving Party to

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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);

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

10.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors to

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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);

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(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),

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

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deposition testimony or exhibits to depositions that reveal Protected Material and/or Confidential

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Information must be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Stipulated Protective Order; and

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

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other person who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL AND/OR CONFIDENTIAL INFORMATION SUBPOENAED

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OR ORDERED PRODUCED IN OTHER LITIGATION

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

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party

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must:

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

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

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

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Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material and/or Confidential Information may be affected.

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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”

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

11.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

before a determination by the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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9.

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A

NON-PARTY’S

CONFIDENTIAL

INFORMATION

AND/OR

PROTECTED

MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION
(a)

The terms of this Stipulated Protective Order are applicable to information

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

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produced by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party

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from seeking additional protections.

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

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Non-Party’s Confidential Information in its possession, and the Party is subject to an agreement with

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the Non-Party not to produce the Non-Party’s Confidential Information, then the Party shall:

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(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;

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

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

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the information requested; and

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

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

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

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Non-Party’s Confidential Information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before a determination by

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the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of

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seeking protection in this court of its Confidential Information.

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

12.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

10.

2

PROTECTED MATERIAL

UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION AND/OR

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

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Information and/or Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the

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

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copies of the Confidential Information and/or Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Stipulated Protective Order, and

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(d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

10

that is attached hereto as Exhibit A.

11

11.

CLAWBACK AGREEMENT

12

Pursuant to FRE 502(d) and (e), the Parties agree to and the Court orders protection

13

of privileged and otherwise Protected Material against claims of waiver (including as against third

14

parties and in other federal and state proceedings) as follows:

15

(a)

The inadvertent disclosure or production of Protected Material by a Producing

16

Party subject to a legally recognized claim of privilege, including without limitation the attorney-

17

client privilege and the work-product doctrine, to a Receiving Party, shall in no way constitute the

18

voluntary disclosure of such Protected Material.

19

(b)

The inadvertent disclosure or production of any Protected Material this action

20

shall not result in the waiver of any privilege, evidentiary protection or other protection associated

21

with such Discovery Material as to the Receiving Party or any third parties, and shall not result in

22

any waiver, including subject matter waiver, of any kind.

23

(c)

If, during the course of this litigation, a Party determines that any Discovery

24

Material produced by another party is or may reasonably be subject to a legally recognizable

25

privilege or evidentiary protection:

26

(i)

The Receiving Party shall: (A) refrain from reading the Protected

27

Material any more closely than is necessary to ascertain that it is privileged or otherwise protected

28

from disclosure; (B) immediately notify the Producing Party in writing that it has discovered

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

13.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

Documents believed to be privileged or protected; (C) specifically identify the Protected Materials

2

by Bates number range or hash value; and, (D) within ten (10) court days of discovery by the

3

Receiving Party, return, sequester, or destroy all copies of such Protected Materials, along with any

4

notes, abstracts or compilations of the content thereof; and (E) within 2 court days of taking the

5

actions identified in subpart (D) above, notify the producing Party of the action taken. To the extent

6

that Protected Material has been loaded into a litigation review database under the control of the

7

Receiving Party, the Receiving Party shall have all electronic copies of the Protected Document

8

extracted from the database. Where such Protected Materials cannot be extracted, destroyed, or

9

separated, they shall not be reviewed, disclosed, or otherwise used by the Receiving Party.

10

Notwithstanding, the Receiving Party is under no obligation to search or review the Producing

11

Party’s Discovery Material to identify potentially privileged or work product Protected Materials.

12

(ii)

If the Producing Party intends to assert a claim of privilege or other

13

protection over Documents identified by the Receiving Party as Protected Materials, the Producing

14

Party will, within ten (10) court days of receiving the Receiving Party’s written notification

15

described above that identifies the Protected Material by Bates number ,or hash value if no Bates

16

number, inform the Receiving Party of such intention in writing and shall provide the Receiving

17

Party with a log for such Protected Material that is consistent with the requirements of the Federal

18

Rules of Civil Procedure, setting forth the basis for the claim of privilege or other protection. In the

19

event that any portion of a Protected Material does not contain privileged or protected information,

20

the Producing Party shall also provide to the Receiving Party a redacted copy of the document that

21

omits the information that the Producing Party believes is subject to a claim of privilege or other

22

protection.

23

substantial.

24
25
26

The Producing Party may seek more time if the volume of data or documents is

(d)

If, during the course of this litigation, a Party determines it has produced one

or more Protected Material:
(i)

The Producing Party may notify the Receiving Party of such

27

inadvertent production in writing, and demand the return of such material. Such notice shall be in

28

writing, however, it may be delivered orally on the record at a deposition, promptly followed up in

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

14.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

writing. The Producing Party’s written notice will identify the Protected Material inadvertently

2

produced by bates number range or hash value, the privilege or protection claimed, and the basis for

3

the assertion of the privilege and shall provide the Receiving Party with a log for such Protected

4

Material that is consistent with the requirements of the Federal Rules of Civil Procedure, setting

5

forth the basis for the claim of privilege or other protection. In the event that any portion of the

6

Protected Material does not contain privileged or protected information, the Producing Party shall

7

also provide to the Receiving Party a redacted copy of the document that omits the information that

8

the Producing Party believes is subject to a claim of privilege or other protection.

9

(ii)

The Receiving Party must, within five (5) court days of receiving the

10

Producing Party’s written notification described above, return, sequester, or destroy the Protected

11

Material and any copies, along with any notes, abstracts or compilations of the content thereof.

12

Destruction shall mean deletion of documents from all databases, applications, and/or file systems in

13

a manner such that they are not readily accessible without the use of specialized tools or techniques

14

typically used by a forensic expert. To the extent that Protected Material has been loaded into a

15

litigation review database under the control of the Receiving Party, the Receiving Party shall have all

16

electronic copies of the Protected Material extracted from the database. Where such Protected

17

Materials cannot be extracted, destroyed or separated, they shall not be reviewed, disclosed, or

18

otherwise used by the Receiving Party.

19

(e)

To the extent that the information contained in Protected Material has already

20

been used in or described in other documents generated or maintained by the Receiving Party prior

21

to the date of receipt of written notice by the Producing Party as set forth in paragraphs (c)(ii) and

22

d(i), then the Receiving Party shall sequester such documents until the claim has been resolved. If

23

the Receiving Party disclosed the Protected Material before being notified of its inadvertent

24

production, it must take reasonable steps to retrieve it and notify the Producing Party of the identities

25

of the person(s) to whom the disclosure was made. To the extent the identity of these person(s) is

26

protected by work product privilege, the Receiving Party may initially disclose the general nature of

27

the person(s) (e.g., “consultant regarding data analysis”); however, the Producing Party retains the

28

right to seek the name(s) of such persons should it have a reasonable basis to believe that

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

15.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

confidential information from a Protected Document that was inadvertently produced and clawed

2

back pursuant to this Order was disclosed and the identity of the person(s) who violated this Order is

3

unknown. The court retains the power to order the disclosure of the identity of such persons upon

4

motion requesting such relief.

5

(f)

The Receiving Party’s return, sequestering or destruction of Protected

6

Material as provided herein will not act as a waiver of the Requesting Party’s right to move for the

7

production of the returned, sequestered or destroyed documents on the grounds that the documents

8

are not, in fact, subject to a viable claim of privilege or protection. However, the Receiving Party is

9

prohibited and estopped from arguing that:

10
11

(i)

the disclosure or production of the Protected Materials acts as a

waiver of an applicable privilege or evidentiary protection;

12

(ii)

the disclosure of the Protected Materials was not inadvertent;

13

(iii)

the Producing Party did not take reasonable steps to prevent the

14

disclosure of the Protected Materials; or

15
16
17

(iv)

the Producing Party failed to take reasonable or timely steps to rectify

the error pursuant to FRCP 26(b)(5)(B), or otherwise.
(g)

In accordance with Civil Local Rule 79-5, either party may submit Protected

18

Materials to the Court under seal for a determination of the claim of privilege or other protection.

19

The Producing Party shall preserve the Protected Materials until such claim is resolved. The

20

Receiving Party may not use the Protected Materials for any purpose absent this Court’s Order.

21

(h)

Upon a determination by the Court that the Protected Materials are protected

22

by the applicable privilege or evidentiary protection, and if the Protected Materials have been

23

sequestered rather than returned or destroyed by the Receiving Party, the Protected Materials shall

24

be returned or destroyed within five (5) court days of the Court’s order. The Court may also order

25

the identification by the Receiving Party of Protected Materials by search terms or other means.

26

(i)

Nothing contained herein is intended to, or shall serve to limit a party’s right

27

to conduct a review of documents, data (including electronically stored information) and other

28

information, including without limitation, metadata, for relevance, responsiveness and/or the

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

16.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

segregation of privileged and/or protected information before such information is produced to

2

another party.

3

(j)

By operation of the Parties’ agreement and Court Order, the Parties are

4

specifically afforded the protections of FRE 502 (d) and (e).

5

12.

6
7
8

MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Stipulated Protective Order abridges the right

of any person to seek its modification by the court in the future.
12.2

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

9

Protective Order no Party waives any right it otherwise would have to object to disclosing or

10

producing any information or item on any ground not addressed in this Stipulated Protective Order.

11

Similarly, no Party waives any right to object on any ground to use in evidence of any of the material

12

covered by this Stipulated Protective Order.

13

12.3

Filing Confidential Information and/or Protected Material.

Without written

14

permission from the Designating Party or a court order secured after appropriate notice to all

15

interested persons, a Party may not file in the public record in this action any Confidential

16

Information and/or Protected Material. A Party that seeks to file under seal any Confidential

17

Information and/or Protected Material must comply with Civil Local Rule 79-5.

18

Information and/or Protected Material may only be filed under seal pursuant to a court order

19

authorizing the sealing of the specific Confidential Information and/or Protected Material at issue.

20

Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the

21

Confidential Information and/or Protected Material at issue is privileged, protectable as a trade

22

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

23

Confidential Information and/or Protected Material under seal pursuant to Civil Local Rule 79-5(d)

24

is denied by the court, then the Receiving Party may file the information in the public record

25

pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

26

12.4

Information Security Protections.

Confidential

Any person in possession of another Party's

27

Confidential Information and/or Protected Material shall maintain a written information security

28

program that includes reasonable administrative, technical, and physical safeguards designed to

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

17.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

protect the security and confidentiality of such Confidential Information and/or Protected Material,

2

protect against any reasonably anticipated threats or hazards to the security of such Confidential

3

Information and/or Protected Material, and protect against unauthorized access to or use of such

4

Confidential Information and/or Protected Material. To the extent a person or party does not have an

5

information security program they may comply with this provision by having the Confidential

6

Information and/or Protected Material managed by and/or stored with eDiscovery vendors or claims

7

administrators that maintain such an information security program.

8

If the Receiving Party discovers a breach of security, including any actual or suspected

9

unauthorized access, relating to another Party's Confidential Information and/or Protected Material,

10

the Receiving Party shall: (1) promptly provide written notice to Designating Party of such breach;

11

(2) investigate and take reasonable efforts to remediate the effects of the breach, and provide

12

Designating Party with assurances reasonably satisfactory to Designating Party that such breach

13

shall not recur; and (3) provide sufficient information about the breach that the Designating Party

14

can reasonably ascertain

15

governmental request, requirement or order to disclose such information, the Receiving Party shall

16

take all reasonable steps to give the Designating Party sufficient prior notice in order to contest such

17

request, requirement or order through legal means. The Receiving Party agrees to cooperate with

18

the Designating Party or law enforcement in investigating any such security incident. In any event,

19

the Receiving Party shall promptly take all necessary and appropriate corrective action to terminate

20

the unauthorized access.

21

13.

the size and scope

of the breach.

If required by any judicial or

FINAL DISPOSITION

22

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

23

Receiving Party must return all Confidential Information and/or Protected Material to the Producing

24

Party or destroy such material. As used in this subdivision, “all Confidential Information and/or

25

Protected Material” includes all copies, abstracts, compilations, summaries, and any other format

26

reproducing or capturing any of the Confidential Information and/or Protected Material. Whether

27

the Confidential Information and/or Protected Material is returned or destroyed, the Receiving Party

28

must submit a written certification to the Producing Party (and, if not the same person or entity, to

LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

18.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

2

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has not

3

retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing

4

any of the Confidential Information and/or Protected Material. Notwithstanding the above:

5

(a)

Counsel are entitled to retain an archival copy of all pleadings, motion papers,

6

trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

7

exhibits, expert reports, attorney work product, and consultant and expert work product, even if such

8

materials contain Confidential Information and/or Protected Material. Any such archival copies that

9

contain or constitute Confidential Information and/or Protected Material remain subject to this

10

Protective Order as set forth in Section 4 (DURATION).

11

(b)

If any information or items designated as “CONFIDENTIAL” and produced

12

by another Party or Non-Party has been loaded into any litigation review database, the attorney for

13

the party using such database shall have the responsibility of ensuring that all such information

14

(including all associated images and native files) is extracted from such databases (including any

15

associated staging databases) and destroyed. “Destroyed” shall mean deletion of documents from all

16

databases, applications and/or file systems in a manner such that they are not readily accessible

17

without the use of specialized tools or techniques typically used by a forensic expert.

18

(c)

The Parties, counsel of record for the Parties, and experts or consultants for a

19

Party shall not be required to return or to destroy any information or items designated as

20

“CONFIDENTIAL” to the extent such information is (i) stored on media that is generally considered

21

not reasonably accessible, such as disaster recovery backup tapes, or (ii) only retrievable through the

22

use of specialized tools or techniques typically used by a forensic expert; provided that to the extent

23

any such information is not returned or destroyed due to the foregoing reasons, such information or

24

items designated in this action as “CONFIDENTIAL” shall remain subject to the confidentiality

25

obligations of this Stipulated Protective Order.

26

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
(Signatures of counsel appear on the following page.)

27
28
LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

////
CASE NO. 14-CV-03926-HSG

19.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

Dated: April 21, 2015

2

/s/ Kiley L. Grombacher
KILEY L. GROMBACHER
MARLIN & SALTZMAN
Attorneys for Plaintiff
TYWAIN WILLIS

3
4
5
6
7

Dated: April 21, 2015
/s/ Jerrilyn T. Malana
JERRILYN T. MALANA
LITTLER MENDELSON, P.C.
Attorneys for Defendants
AVIS BUDGET GROUP, INC., AVIS
BUDGET CAR RENTAL, LLC, and AB CAR
RENTAL SERVICES, INC.

8
9
10
11
12
13
14
15
16

I attest that all other signatories listed, and on whose behalf the filing is submitted,
concur in the filing’s content and have authorized the filing.
Dated: April 21, 2015
/s/ Jerrilyn T. Malana
JERRILYN T. MALANA
LITTLER MENDELSON, P.C.
Attorneys for Defendants
AVIS BUDGET GROUP, INC., AVIS
BUDGET CAR RENTAL, LLC, and AB CAR
RENTAL SERVICES, INC.

17
18
19
20
21

* * *

22
23

PURSUANT TO STIPULATION, IT IS SO ORDERED.

24
25
26

Dated: __________________
4/22/2015

__________________________________________________
UNITED STATES DISTRICT JUDGE

27
28
LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

CASE NO. 14-CV-03926-HSG

20.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I,

_____________________________

[print

or

type

full

name],

of

4

_________________ [print or type full address], declare under penalty of perjury that I have read in

5

its entirety and understand the Stipulated Protective Order that was issued by the United States

6

District Court for the Northern District of California on [date] in the case of Tywain Willis v. Avis

7

Budget Group, Inc., et al., Case No. 14-cv-03926-HSG (JCS). I agree to comply with and to be

8

bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that

9

failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

10

solemnly promise that I will not disclose in any manner any information or item that is subject to this

11

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

12

this Order.

13

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

14

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

15

Order, 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 number] as

18

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

19

to enforcement of this Stipulated Protective Order.

20
21

Date: ______________________________________

22

City and State where sworn and signed: _________________________________

23
24

Printed name: _______________________________

25
26

Signature: __________________________________

27
28
LITTLER MENDELSON, P.C.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

Firmwide:131967291.4 035682.1123

CASE NO. 14-CV-03926-HSG

21.

STIPULATED PROTECTIVE ORDER WITH
CLAWBACK AGREEMENT

WILLIS V. AVIS BUDGET GROUP, INC., ET AL.
USDC-Northern District- Case No.3: 14-cv-03926-KA W

2
PROOF OF SERVICE
3

I, MARIA RUVALCABA, certify and declare as follows:

I am employed in San Diego

4
County, California. I am over the age of eighteen years and not a party to the within-entitled action.

5
My business address is 501 West Broadway, Suite 900, San Diego, California 92101.3577.
6

On April21, 2015, I caused the following documents:
7

STIPULATED PROTECTIVE ORDER WITH CLAWBACK AGREEMENT
8

9
10
11
12
13
14
15
16
17
18
19
20
21

22
23
24

To be electronically filed with the Clerk of the Court through the Court's CM/ECF system. It is my
understanding that the CM/ECF system will automatically send a "Notice of Electronic Filing" to the
registered users in the case and that the "Notice of Electronic Filing" will constitute service of the
above-listed document(s) on the following:
Shaun Setarch, Esq.
Setareh Law Group
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Attorney for Plaintiff
Tuvia Korobkin, Esq.
Setareh Law Group
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Attorney for Plaintiff
Neil Larsen, Esq.
Setareh Law Group
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Attorney for Plaintiff
Marlin @ Saltzman, LLP
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
29229 Canwood Street, Sutie 208
Agoura Hills, CA 91201

shaunCaisetarehlaw.com

[e-mail]
[e-mail]

[e-mail]

[e-mail]
kgrombacherCqJ,marlinsaltzman.com

25
26
27
28
LIThER MENDELSON, P.C.
501 W. Broadway
Suite 900
sanDiego,cA s21o1.3577
619.232.0441

Case No. 3: 14-cv-02926-KA W

PROOF OF SERVICE

1
2

I declare that I am employed in the office of a member of the bar of this court at
whose direction the serv.ice was made. Executed on April21, 2015, at San Diego, California.

3
4

5
6

M ·a Ruvalcaba
Firmwide: 133039056.1 035682. 1123
4/21/15

7

8
9
10

11
12
13

14
15
16
17
18
19
20
21
22
23
24
25
26
27

28
LITTLER MENDELSON, PC.
501 W. Broadway
Suite 900
San Diego, CA 92101.3577
619.232.0441

2.
Case No. 3:14-cv-02926-KAW

PROOF OF SERVICE