Morris v. SolarCity Corp.

Filing 67

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 5/16/2016)

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1 7 BURSOR & FISHER, P.A. L. Timothy Fisher (SBN 191626) Annick M. Persinger (SBN 272996) Yeremey O. Krivoshey (SBN 295032) Joshua Arisohn (admitted pro hac vice) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com apersinger@bursor.com ykrivoshey@bursor.com jarisohn@bursor.com 8 Attorneys for Plaintiff 2 3 4 5 6 RANDALL S. LUSKEY (STATE BAR NO. 240915) rluskey@orrick.com KATIE LIEBERG STOWE (STATE BAR NO. 257206) kstowe@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, California 94105 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 ELYSE D. ECHTMAN (admitted pro hac vice) eechtman@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, New York 10019-6142 Telephone: (212) 506-5000 Facsimile: (212) 506-5151 9 10 11 15 CHRISTINA GUEROLA SARCHIO (admitted pro hac vice) csarchio@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1152 15th Street, N.W. Washington, D.C. 20005 Telephone: (202) 339-8400 Facsimile: (202) 339-8500 16 Attorneys for Defendant 12 13 14 17 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 21 GEORGE MORRIS, on Behalf of Himself and all Others Similarly Situated, Case No. 3:15-cv-05107 STIPULATED PROTECTIVE ORDER 22 Plaintiffs, 23 v. Hon. Richard Seeborg Action Filed: November 6, 2015 24 SOLARCITY CORP., 25 Defendant. 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 I. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 10 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 11 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 12 the standards that will be applied when a party seeks permission from the court to file material 13 under seal. 14 II. 15 16 17 DEFINITIONS Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 18 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil 19 Procedure 26(c). 20 21 22 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). Designating Party: a Party or Non-Party that designates information or items that it 23 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 24 CONFIDENTIAL—ATTORNEYS’ EYES ONLY”. 25 Disclosure or Discovery Material: all items or information, regardless of the medium or 26 manner in which it is generated, stored, or maintained (including, among other things, testimony, 27 transcripts, and tangible things), that are produced or generated in disclosures or responses to 28 discovery in this matter. -1- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 Expert: a person with specialized knowledge or experience in a matter pertinent to the 2 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action, (2) is not a past or current employee of a Party or of a Party’s 4 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 5 or of a Party’s competitor. 6 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items: 7 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or 8 Non-Party would create a substantial risk of serious harm that could not be avoided by less 9 restrictive means. 10 11 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 12 13 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 14 Outside Counsel of Record: attorneys who are not employees of a party to this action but 15 are retained to represent or advise a party to this action and have appeared in this action on behalf 16 of that party or are affiliated with a law firm which has appeared on behalf of that party. 17 Party: any party to this action, including all of its officers, directors, employees, 18 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 19 20 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 21 Professional Vendors: persons or entities that provide litigation support services (e.g., 22 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 23 storing, or retrieving data in any form or medium) and their employees and subcontractors. 24 25 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” 26 27 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 28 -2- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 III. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 2 3 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 4 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 5 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 6 However, the protections conferred by this Stipulation and Order do not cover the following 7 information: (a) any information that is in the public domain at the time of disclosure to a 8 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 9 a result of publication not involving a violation of this Order, including becoming part of the 10 public record through trial or otherwise; and (b) any information known to the Receiving Party 11 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 12 obtained the information lawfully and under no obligation of confidentiality to the Designating 13 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 14 IV. DURATION 15 Even after final disposition of this litigation, the confidentiality obligations imposed by 16 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 17 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 18 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 19 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 20 including the time limits for filing any motions or applications for extension of time pursuant to 21 applicable law. 22 V. DESIGNATING PROTECTED MATERIAL 23 A. Exercise of Restraint and Care in Designating Material for Protection. 24 Each Party or Non-Party that designates information or items for protection under this 25 Order must take care to limit any such designation to specific material that qualifies under the 26 appropriate standards. To the extent it is practical to do so, the Designating Party must designate 27 for protection only those parts of material, documents, items, or oral or written communications 28 that qualify—so that other portions of the material, documents, items, or communications for -3- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 2 which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are 3 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 4 unnecessarily encumber or delay the case development process or to impose unnecessary 5 expenses and burdens on other parties) may expose the Designating Party to sanctions. 6 If it comes to a Designating Party’s attention that information or items that it designated 7 for protection do not qualify for protection at all or do not qualify for the level of protection 8 initially asserted, that Designating Party must promptly notify all other parties that it is 9 withdrawing the mistaken designation. 10 B. 11 Except as otherwise provided in this Order, or as otherwise stipulated or ordered, 12 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 13 designated before the material is disclosed or produced. Manner and Timing of Designations. 14 Designation in conformity with this Order requires: 15 (a) for information in documentary form (e.g., paper or electronic documents, but 16 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 17 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ 18 EYES ONLY” to each document that contains protected material. A Party or Non-Party that 19 makes original documents or materials available for inspection need not designate them for 20 protection until after the inspecting Party has indicated which material it would like copied and 21 produced. During the inspection and before the designation, all of the material made available for 22 inspection shall be deemed “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” After 23 the inspecting Party has identified the documents it wants copied and produced, the Producing 24 Party must determine which documents, or portions thereof, qualify for protection under this 25 Order. Then, before producing the specified documents, the Producing Party must affix the 26 appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ 27 EYES ONLY”) to each document that contains Protected Material. 28 (b) for electronically stored information (“ESI”) produced in native format, the -4- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 2 Designating Party shall include the appropriate confidentiality designation within the file name. (c) for ESI produced in tiff format, if the document is “CONFIDENTIAL” or 3 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”, the designation should appear on 4 every page. 5 (d) for testimony given in deposition or in other pretrial or trial proceedings, the 6 Designating Party shall identify on the record, before the close of the deposition, hearing, or other 7 proceeding or by written notification within thirty (30) days after receipt of the clean transcript, 8 all protected testimony and specify the level of protection being asserted. 9 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 10 other proceeding to include Protected Material so that the other parties can ensure that only 11 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 12 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 13 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 14 CONFIDENTIAL— ATTORNEYS’ EYES ONLY.” 15 Transcripts containing Protected Material shall have an obvious legend on the title page 16 that the transcript contains Protected Material, and the title page shall be followed by a list of all 17 pages (including line numbers as appropriate) that have been designated as Protected Material and 18 the level of protection being asserted by the Designating Party. The Designating Party shall 19 inform the court reporter of these requirements. Any transcript that is prepared before the 20 expiration of a 21-day period for designation shall be treated during that period as if it had been 21 designated “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” in its entirety unless 22 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 23 actually designated. 24 (e) other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the legend 26 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”. 27 C. 28 An inadvertent failure to designate qualified information or items does not, standing Inadvertent Failures to Designate. -5- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 alone, waive the Designating Party’s right to secure protection under this Order for such material. 2 Upon timely correction of a designation, the Receiving Party must make reasonable efforts to 3 assure that the material is treated in accordance with the provisions of this Order. 4 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 A. 6 Any Party or Non-Party may challenge a designation of confidentiality at any time. Timing of Challenges. 7 Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to 8 avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 9 disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality 10 designation by electing not to mount a challenge promptly after the original designation is 11 disclosed. 12 B. 13 The Challenging Party shall initiate the dispute resolution process by providing written Meet and Confer. 14 notice of each designation it is challenging and describing the basis for each challenge. To avoid 15 ambiguity as to whether a challenge has been made, the written notice must recite that the 16 challenge to confidentiality is being made in accordance with this specific paragraph of the 17 Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin 18 the process by conferring directly (in voice to voice dialogue; other forms of communication are 19 not sufficient) within 7 days of the date of service of notice. In conferring, the Challenging Party 20 must explain the basis for its belief that the confidentiality designation was not proper and must 21 give the Designating Party an opportunity to review the designated material, to reconsider the 22 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 23 designation. A Challenging Party may proceed to the next stage of the challenge process only if 24 it has engaged in this meet and confer process first or establishes that the Designating Party is 25 unwilling to participate in the meet and confer process in a timely manner. 26 C. 27 If the Parties cannot resolve a challenge without court intervention, the Designating Party 28 shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance Judicial Intervention. -6- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or 2 within 14 days of the parties agreeing that the meet and confer process will not resolve their 3 dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration 4 affirming that the movant has complied with the meet and confer requirements imposed in the 5 preceding paragraph. Failure by the Designating Party to make such a motion including the 6 required declaration within 21 days (or 14 days, if applicable) shall automatically waive the 7 confidentiality designation for each challenged designation. In addition, the Challenging Party 8 may file a motion challenging a confidentiality designation at any time if there is good cause for 9 doing so, including a challenge to the designation of a deposition transcript or any portions 10 thereof. Any motion brought pursuant to this provision must be accompanied by a competent 11 declaration affirming that the movant has complied with the meet and confer requirements 12 imposed by the preceding paragraph. 13 The burden of persuasion in any such challenge proceeding shall be on the Designating 14 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 15 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 16 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 17 file a motion to retain confidentiality as described above, all parties shall continue to afford the 18 material in question the level of protection to which it is entitled under the Producing Party’s 19 designation until the court rules on the challenge. 20 VII. ACCESS TO AND USE OF PROTECTED MATERIAL 21 A. 22 A Receiving Party may use Protected Material that is disclosed or produced by another Basic Principles. 23 Party or by a Non-Party in connection with this case only for prosecuting, defending, or 24 attempting to settle this litigation. Such Protected Material may be disclosed only to the 25 categories of persons and under the conditions described in this Order. When the litigation has 26 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 27 DISPOSITION). 28 Protected Material must be stored and maintained by a Receiving Party at a location and -7- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 in a secure manner1 that ensures that access is limited to the persons authorized under this Order. 2 B. 3 Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 4 Disclosure of “CONFIDENTIAL” Information or Items. Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 6 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 7 information for this litigation; 8 9 10 (b) the officers, directors, and/or employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (c) Experts (as defined in this Order) of the Receiving Party (1) to whom disclosure is 12 reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff, and professional jury or trial consultants and 16 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 19 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 20 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 21 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 22 bound by the court reporter and may not be disclosed to anyone except as permitted under this 23 Stipulated Protective Order; 24 25 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 26 (h) special masters, mediators, or other Non-Parties who are appointed by the Court or 27 1 28 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in password-protected form. -8- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 retained by the Parties for settlement purposes or resolution of discovery or other disputes, along 2 with their necessary personnel, and who (in the case of persons retained by the Parties) have 3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 5 6 7 8 (i) of Record for the prosecution, defense, or settlement of this action; and (j) any jury consultants or “mock jurors” retained by the Parties in connection with this action who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). C. Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items. (a) Unless otherwise ordered by the court or permitted in writing by the Designating 9 10 individual Parties, including Plaintiffs, to the extent deemed necessary by Counsel 11 Party, a Receiving Party may disclose any information or item designated “HIGHLY 12 CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to: 13 (i) the Receiving Party’s Outside Counsel of Record in this action, as well as 14 employees of said Outside Counsel of Record to whom it is reasonably necessary to 15 disclose the information for this litigation; 16 (ii) Experts of the Receiving Party (1) to whom disclosure is reasonably 17 necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to 18 Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 19 7.4(D)(a), below, have been followed; 20 (iii) the court and its personnel; 21 (iv) court reporters and their staff; and professional jury or trial consultants, and 22 Professional Vendors to whom disclosure is reasonably necessary for this litigation and 23 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 25 26 (v) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. (vi) during their depositions, (1) witnesses from the Party that designated the 27 Document; (2) the author, recipient, or custodian of a document containing the 28 information or (3) other persons who through testimony or through corroborating -9- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 documents, have been demonstrated to have received or authored the document. Pages of 2 transcribed deposition testimony or exhibits to depositions that reveal Protected Material 3 must be separately bound by the court reporter and may not be disclosed to anyone except 4 as permitted under this Stipulated Protective Order; 5 (viii) special masters, mediators, or other Non-Parties who are appointed by the 6 Court or retained by the Parties for settlement purposes or resolution of discovery or other 7 disputes, along with their necessary personnel, and who (in the case of persons retained by 8 the Parties) have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 9 and 10 (ix) any jury consultants or “mock jurors” retained by the Parties in connection 11 with this action who have signed the “Acknowledgment and Agreement to Be Bound” 12 (Exhibit A). 13 (b) If Counsel for Receiving Party wishes to disclose “Highly Confidential - 14 Attorneys’ Eyes Only” Material to any person not designated above, counsel shall follow the 15 following procedure: 16 (i) Counsel for the Receiving Party shall make a written request to the 17 Designating Party that sets forth (1) the names of the persons to whom “Highly 18 Confidential - Attorneys’ Eyes Only” Material are to be disclosed and (2) a description of 19 the general categories of Protected Material to be disclosed to such person. 20 (ii) The Designating Party shall have seven days from receipt of the written 21 request to object to the disclosure of the Protected Material. Any such objection must set 22 forth in detail the grounds on which it is based. 23 (iii) A Receiving Party that receives a timely written objection must meet and 24 confer with the Designating Party (through direct voice to voice dialogue) to try to resolve 25 the matter by agreement within 7 days of receiving the written objection. If no agreement 26 is reached, the Receiving Party may file a motion as provided in Civil Local Rule 7 (and 27 in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the 28 court to make the disclosure. Any such motion must describe the circumstances with - 10 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 specificity, set forth in detail the reasons why the disclosure is reasonably necessary, 2 assess the risk of harm that the disclosure would entail, and suggest any additional means 3 that could be used to reduce that risk. In addition, any such motion must be accompanied 4 by a competent declaration describing the parties’ efforts to resolve the matter by 5 agreement (i.e., the extent and the content of the meet and confer discussions) and setting 6 forth the reasons advanced by the Designating Party for its refusal to approve the 7 disclosure. 8 (iii) 9 All persons to whom disclosures are permitted and made hereunder shall comply with the terms of this Stipulated Protective Order. 10 D. Procedures for Approving or Objecting to Disclosure of “CONFIDENTIAL” AND “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items to Experts. (a) Unless otherwise ordered by the court or agreed to in writing by the Designating 11 12 13 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item 14 that has been designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ 15 EYES ONLY” pursuant to paragraph 7.2(c) or 7.3(b) first must make a written request to the 16 Designating Party that (1) sets forth the full name of the Expert and the city and state of his or her 17 primary residence, (2) attaches a copy of the Expert’s current resume, (3) identifies the Expert’s 18 current employer(s), (4) identifies each person or entity from whom the Expert has received 19 compensation or funding for work in his or her areas of expertise or to whom the expert has 20 provided professional services, including in connection with a litigation, at any time during the 21 preceding five years,2 and (5) identifies (by name and number of the case, filing date, and location 22 of court) any litigation in connection with which the Expert has offered expert testimony, 23 including through a declaration, report, or testimony at a deposition or trial, during the preceding 24 five years.3 25 2 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 3 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” information. 26 27 28 - 11 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 (b) A Party that makes a request and provides the information specified in the 2 preceding respective paragraphs may disclose the subject Protected Material to the identified 3 Expert unless, within 7 days of delivering the request, the Party receives a written objection from 4 the Designating Party. Any such objection must set forth in detail the grounds on which it is 5 based. 6 (c) A Party that receives a timely written objection must meet and confer with the 7 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 8 agreement within seven days of the written objection. If no agreement is reached, the Party 9 seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 10 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court 11 to do so. Any such motion must describe the circumstances with specificity, set forth in detail the 12 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the 13 disclosure would entail, and suggest any additional means that could be used to reduce that risk. 14 In addition, any such motion must be accompanied by a competent declaration describing the 15 parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and 16 confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal 17 to approve the disclosure. 18 (d) In any such proceeding, the Party or Non-Party opposing disclosure to the Expert 19 shall bear the burden of proving that the risk of harm that the disclosure would entail (under the 20 safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to 21 its Expert. 22 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 23 24 If a Party is served with a subpoena or a court order issued in other litigation that compels 25 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 26 “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” that Party must: 27 28 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; - 12 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 (b) promptly notify in writing the party who caused the subpoena or order to issue in 2 the other litigation that some or all of the material covered by the subpoena or order is subject to 3 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 4 and 5 6 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.4 7 If the Designating Party timely seeks a protective order, the Party served with the 8 subpoena or court order shall not produce any information designated in this action as 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” before a 10 determination by the court from which the subpoena or order issued, unless the Party has obtained 11 the Designating Party’s permission. The Designating Party shall bear the burden and expense of 12 seeking protection in that court of its confidential material—and nothing in these provisions 13 should be construed as authorizing or encouraging a Receiving Party in this action to disobey a 14 lawful directive from another court. 15 IX. 16 17 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 18 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL— 19 ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with 20 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 21 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to produce a 23 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 24 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 25 1. 26 27 28 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 4 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. - 13 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 Non-Party; 2 2. promptly provide the Non-Party with a copy of the Stipulated Protective 3 Order in this litigation, the relevant discovery request(s), and a reasonably specific 4 description of the information requested; and 5 3. 6 (c) make the information requested available for inspection by the Non-Party. If the Non-Party fails to object or seek a protective order from this court within 14 7 days of receiving the notice and accompanying information, the Receiving Party may produce the 8 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 9 seeks a protective order, the Receiving Party shall not produce any information in its possession 10 or control that is subject to the confidentiality agreement with the Non-Party before a 11 determination by the court.5 Absent a court order to the contrary, the Non-Party shall bear the 12 burden and expense of seeking protection in this court of its Protected Material. 13 X. 14 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 15 Material to any person or in any circumstance not authorized under this Stipulated Protective 16 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 17 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 18 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 19 made of all the terms of this Order, and (d) request such person or persons to execute the 20 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 21 XI. 22 23 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL Production or disclosure of documents or information subject to the attorney-client 24 privilege, work product immunity, or any other applicable privilege shall not constitute a waiver 25 of, nor a prejudice to, any claim that such or related material is privileged or protected by the 26 work product immunity or any other applicable privilege. A Producing Party may notify the 27 5 28 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. - 14 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 Receiving Party in writing that produced documents or information are subject to the attorney- 2 client privilege, work product immunity, or any other applicable privilege. Within five (5) 3 business days of this notice, the Receiving Party shall return or destroy all such documents or 4 information and all copies thereof, including those that have been shared with Experts, 5 consultants, and vendors, and confirm in writing that all such documents or information have 6 been returned or destroyed. No use shall be made of such documents or information during 7 depositions, through motion practice, or at trial. In the case of such returned production, the 8 Producing Party shall provide a privilege log identifying such documents or information within 9 ten (10) business days of its original notice to the Receiving Party. The Receiving Party may 10 move the Court for an Order compelling production of any such documents or information in 11 accordance with the Federal Rules of Civil Procedure, the Northern District Local Rules, or any 12 Standing Orders or General Orders of this Court. The motion shall be filed under seal pursuant to 13 Northern District Local Rule 79-5 and shall not assert as a ground for production the fact of the 14 earlier production, nor shall the motion disclose or otherwise use the content of the previously 15 produced and returned documents or information in any way (beyond any information appearing 16 on the above-referenced privilege log). 17 If a disclosing party marks for identification or offers into evidence documents or 18 information subject to the attorney-client privilege, work product immunity, or any other 19 applicable privilege at trial, at a hearing, at a deposition, or on a motion—or proffers or elicits 20 testimonial or other evidence that incorporates or relies on documents or information subject to 21 the attorney-client privilege, work product immunity, or any other applicable privilege, including 22 evidence within Federal Rule of Evidence 703—that act shall be deemed to effect a waiver and 23 forfeiture by the disclosing party of attorney-client privilege and work product protection that 24 would otherwise apply to undisclosed information concerning the same subject matter, within 25 Federal Rule of Evidence 502(a). The preceding sentence shall not apply to: (i) proceedings to 26 determine whether the documents or information are protected by the attorney-client privilege, 27 work product immunity, or any other applicable privilege, or (ii) documents or information that 28 are marked for identification, offered into evidence, or incorporated into evidence proffered or - 15 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 elicited by an adverse party, or relied on by a witness proffered by an adverse party. 2 XII. MISCELLANEOUS 3 A. 4 Nothing in this Order abridges the right of any person to seek its modification by the court 5 Right to Further Relief. in the future. 6 B. 7 By stipulating to the entry of this Protective Order no Party waives any right it otherwise Right to Assert Other Objections. 8 would have to object to disclosing or producing any information or item on any ground not 9 addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on 10 any ground to use in evidence of any of the material covered by this Protective Order. 11 C. 12 Without written permission from the Designating Party or a court order secured after Filing Protected Material. 13 appropriate notice to all interested persons, a Party may not file in the public record in this action 14 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 15 with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court 16 order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local 17 Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material 18 at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the 19 law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local 20 Rule 79-5(e) is denied by the court, then the Receiving Party may file the Protected Material in 21 the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise instructed by the court. 22 D. Nothing in this Order shall preclude or impede Outside Counsel of Record’s 23 ability to communicate with or advise their client in connection with this litigation only based on 24 such counsel’s review and evaluation of Protected Material, provided however, that such 25 communications or advice shall not disclose or reveal the substance or content of any Protected 26 Material other than as permitted under this Order. 27 XIII. FINAL DISPOSITION 28 Within 60 days after the final disposition of this action, as defined in paragraph 4, each - 16 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 Receiving Party must return all Protected Material to the Producing Party or destroy such 2 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 3 compilations, summaries, and any other format reproducing or capturing any of the Protected 4 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 5 submit a written certification to the Producing Party (and, if not the same person or entity, to the 6 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 7 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 8 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 9 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 10 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 11 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 12 product, and consultant and expert work product, even if such materials contain Protected 13 Material. Any such archival copies that contain or constitute Protected Material remain subject to 14 this Protective Order as set forth in Section IV (DURATION). 15 16 17 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated: May 13, 2016 19 BURSOR & FISHER, P.A. By: /s/ Joshua Arisohn JOSHUA ARISOHN Attorneys for Plaintiff 20 21 22 Dated: May 13, 2016 ORRICK HERRINGTON & SUTCLIFFE, LLP 23 By: /s/ Randall S. Luskey RANDALL S. LUSKEY Attorneys for Defendant . 24 25 26 27 Filer’s Attestation: Pursuant to Civil Local Rule 5-1(i)(3), I attest under penalty of perjury that concurrence in the filing of the document has been obtained from its signatory. 28 - 17 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 Dated: May 13, 2016 Respectfully submitted, 2 /s/ Randall S. Luskey RANDALL S. LUSKEY 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3 4 Dated: May 16, 2016 HONORABLE ELIZABETH D. LAPORTE United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 - STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, ______________________________ [print or type full name], of __________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States District Court for 7 the Northern District of California on __________, 2016 in the case of Morris v. SolarCity Corp., 8 Case No. 3:15-CV-05107. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12 Order to any person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 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 my 18 California agent for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _______________________________________ 23 Printed name: ________________________________________ [print name] 24 25 26 Signature: _______________________________________________________ [signature] 27 28 -1- STIPULATED PROTECTIVE ORDER CASE NO. 3:15-CV-05107

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