Cuzick v. Zodiac U.S. Seat Shells, LLC et al

Filing 32

ORDER by Judge Haywood S. Gilliam, Jr. Granting 31 Stipulated Protective Order for Standard Litigation. (ndrS, COURT STAFF) (Filed on 12/22/2016)

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1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 Shaun Setareh (SBN 204514) Scott Leviant (SBN 200834) Stacey Shim (SBN 305911) SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, California 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 Attorneys for Plaintiff, Kyle Cuzick, on behalf of himself and all others similarly situated SHEPPARD, MULLIN, RICHTER & HAMPTON LLP GREG S. LABATE, Cal. Bar No. 149918 650 Town Center Drive, 4th Floor Costa Mesa, CA 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Email: 16 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP CARYN F. HORNER, Cal. Bar No. 273500 379 Lytton Avenue Palo Alto, California 94301-1479 Telephone: 650.815.2600 Email: chorner@ 17 Attorneys for Defendant Zodiac U.S. Seat Shells LLC 14 15 18 19 UNITED STATES DISTRICT COURT 20 NORTHERN DISTRICT OF CALIFORNIA 21 22 KYLE CUZICK, on behalf of himself, all others similarly situated, 23 24 25 26 27 28 Plaintiff, v. ZODIAC U.S. SEAT SHELLS, LLC, and Does 1-50, inclusive Defendant. Case No. 3:16-cv-03793-HSG STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION 1 1. 2 PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 6 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 7 or responses to discovery and that the protection it affords from public disclosure and use extends 8 only to the limited information or items that are entitled to confidential treatment under the 9 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 10 this Stipulated Protective Order does not entitle them to file confidential information under seal; 11 Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 12 applied when a party seeks permission from the court to file material under seal. 13 2. 14 15 16 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: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 18 Civil Procedure 26(c). 19 20 21 22 23 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 24 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 25 transcripts, and tangible things), that are produced or generated in disclosures or responses to 26 discovery in this matter. 27 28 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 2 1 consultant in this action. 2.7 2 3 Counsel does not include Outside Counsel of Record or any other outside counsel. 4 5 House Counsel: attorneys who are employees of a party to this action. House 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 7 but are retained to represent or advise a party to this action and have appeared in this action on 8 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 9 10 2.10 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 11 12 Party: any party to this action, including all of its officers, directors, employees, 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 13 2.12 Professional Vendors: persons or entities that provide litigation support services 14 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 15 storing, or retrieving data in any form or medium) and their employees and subcontractors. 16 17 2.13 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 18 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 19 Producing Party. 20 3. 21 SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 22 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 23 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 24 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 25 However, the protections conferred by this Stipulation and Order do not cover the following 26 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 27 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 28 publication not involving a violation of this Order, including becoming part of the public record 3 1 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 2 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 3 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 4 Protected Material at trial shall be governed by a separate agreement or order. 5 4. 6 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 7 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 8 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 9 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 10 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 11 time limits for filing any motions or applications for extension of time pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 14 Non-Party that designates information or items for protection under this Order must take care to 15 limit any such designation to specific material that qualifies under the appropriate standards. The 16 Designating Party must designate for protection only those parts of material, documents, items, or 17 oral or written communications that qualify – so that other portions of the material, documents, 18 items, or communications for which protection is not warranted are not swept unjustifiably within 19 the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 21 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 22 encumber or retard the case development process or to impose unnecessary expenses and burdens on 23 other parties) expose the Designating Party to sanctions. 24 If it comes to a Designating Party’s attention that information or items that it designated for 25 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 26 that it is withdrawing the mistaken designation. 27 28 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 4 1 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 2 designated before the material is disclosed or produced. 3 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 4 5 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 6 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 7 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 8 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 9 A Party or Non-Party that makes original documents or materials available for inspection need not 10 designate them for protection until after the inspecting Party has indicated which material it would 11 like copied and produced. During the inspection and before the designation, all of the material made 12 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 13 identified the documents it wants copied and produced, the Producing Party must determine which 14 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 15 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 16 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 17 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 18 appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 19 20 Designating Party identify on the record, before the close of the deposition, hearing, or other 21 proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any other 22 23 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 24 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 25 portion or portions of the information or item warrant protection, the Producing Party, to the extent 26 practicable, shall identify the protected portion(s). 27 28 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s 5 1 right to secure protection under this Order for such material. Upon timely correction of a 2 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 3 accordance with the provisions of this Order. 4 6. 5 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 7 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 8 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 9 confidentiality designation by electing not to mount a challenge promptly after the original 10 11 designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 12 by providing written notice of each designation it is challenging and describing the basis for each 13 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 14 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 15 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 16 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 17 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 18 Party must explain the basis for its belief that the confidentiality designation was not proper and 19 must give the Designating Party an opportunity to review the designated material, to reconsider the 20 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 21 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 22 has engaged in this meet and confer process first or establishes that the Designating Party is 23 unwilling to participate in the meet and confer process in a timely manner. 24 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 25 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 26 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 27 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 28 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 6 1 competent declaration affirming that the movant has complied with the meet and confer 2 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 3 motion including the required declaration within 21 days (or 14 days, if applicable) shall 4 automatically waive the confidentiality designation for each challenged designation. In addition, the 5 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 6 good cause for doing so, including a challenge to the designation of a deposition transcript or any 7 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 8 competent declaration affirming that the movant has complied with the meet and confer 9 requirements imposed by the preceding paragraph. 10 The burden of persuasion in any such challenge proceeding shall be on the Designating 11 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 12 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 13 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 14 retain confidentiality as described above, all parties shall continue to afford the material in question 15 the level of protection to which it is entitled under the Producing Party’s designation until the court 16 rules on the challenge. 17 7. 18 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 19 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 20 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 21 the categories of persons and under the conditions described in this Order. When the litigation has 22 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 23 DISPOSITION). 24 25 26 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 27 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 28 information or item designated “CONFIDENTIAL” only to: 7 1 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 2 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 3 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 4 attached hereto as Exhibit A; (b) the officers, directors, and employees (including House Counsel) of the Receiving 5 6 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 8 9 10 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 11 (d) the court and its personnel; 12 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 13 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 14 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably 15 16 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 17 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 18 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 19 bound by the court reporter and may not be disclosed to anyone except as permitted under this 20 Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or 21 22 other person who otherwise possessed or knew the information. 23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 24 LITIGATION 25 If a Party is served with a subpoena or a court order issued in other litigation that compels 26 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 27 must: 28 (a) promptly notify in writing the Designating Party. Such notification shall include a 8 1 copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 2 3 other litigation that some or all of the material covered by the subpoena or order is subject to this 4 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the 5 6 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 7 8 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 9 before a determination by the court from which the subpoena or order issued, unless the Party has 10 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 11 expense of seeking protection in that court of its confidential material – and nothing in these 12 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 13 disobey a lawful directive from another court. 14 9. 15 16 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in this 17 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 18 connection with this litigation is protected by the remedies and relief provided by this Order. 19 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 20 protections. 21 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 22 Party’s confidential information in its possession, and the Party is subject to an agreement with the 23 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 24 25 26 (1) promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 27 this litigation, the relevant discovery request(s), and a reasonably specific description of the 28 information requested; and 9 1 (3) make the information requested available for inspection by the Non-Party. 2 (c) If the Non-Party fails to object or seek a protective order from this court within 14 3 days of receiving the notice and accompanying information, the Receiving Party may produce the 4 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 5 seeks a protective order, the Receiving Party shall not produce any information in its possession or 6 control that is subject to the confidentiality agreement with the Non-Party before a determination by 7 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 8 seeking protection in this court of its Protected Material. 9 10. 10 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 11 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 12 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 13 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 14 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 15 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 16 Be Bound” that is attached hereto as Exhibit A. 17 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 18 MATERIAL 19 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 20 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 21 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 22 modify whatever procedure may be established in an e-discovery order that provides for production 23 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 24 parties reach an agreement on the effect of disclosure of a communication or information covered by 25 the attorney-client privilege or work product protection, the parties may incorporate their agreement 26 in the stipulated protective order submitted to the court. 27 12. 28 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 10 1 its modification by the court in the future. 12.2 2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 3 no Party waives any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 5 Party waives any right to object on any ground to use in evidence of any of the material covered by 6 this Protective Order. 12.3 7 Filing Protected Material. Without written permission from the Designating Party or a 8 court order secured after appropriate notice to all interested persons, a Party may not file in the 9 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 10 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 11 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant 12 to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the 13 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 14 protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 15 to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information 16 in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 17 13. 18 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 19 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 20 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 21 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 22 the Protected Material is returned or destroyed, the Receiving Party must submit a written 23 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 24 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 25 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 26 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 27 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 28 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 11 1 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 2 and expert work product, even if such materials contain Protected Material. Any such archival copies 3 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 4 Section 4 (DURATION). 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 December 21, 2016 DATED: ________________________ 8 H _____________________________________ H. Scott Leviant Setareh Law Group Attorneys for Plaintiff 9 10 11 December 21, 2016 DATED: ________________________ 12 _____________________________________ Caryn F. Horner Sheppard Mullin Richter & Hampton LLP Attorneys for Defendant 13 14 15 PURSUANT TO STIPULATION, IT IS SO ORDERED. 16 17 18 19 DATED: ________________________ 12/22/2016 _____________________________________ Hon. Haywood S. Gilliam, Jr. United States District Judge 20 21 22 23 24 25 26 27 28 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand the 5 Stipulated Protective Order that was issued by the United States District Court for the Northern 6 District of California on [date] in the case of CUZICK v. ZODIAC U.S. SEAT SHELLS, LLC, 7 Case No. 3:16-cv-03793-HSG. I agree to comply with and to be bound by all the terms of this 8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 9 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 10 disclose in any manner any information or item that is subject to this Stipulated Protective Order to 11 any person or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Northern 13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even 14 if such enforcement proceedings occur after termination of this action. 15 I hereby appoint __________________________ [print or type full name] of 16 _______________________________________ [print or type full address and telephone number] as 17 my California agent for service of process in connection with this action or any proceedings related 18 to enforcement of this Stipulated Protective Order. 19 20 Date: ______________________________________ 21 City and State where sworn and signed: _________________________________ 22 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27 28 13

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