Benton v. Clarity Services, Inc.

Filing 53

STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION. Signed by Judge Maxine M. Chesney on 04/17/17. (mmclc2, COURT STAFF) (Filed on 4/17/2017)

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CHAVEZ & GERTLER LLP
Mark A. Chavez (SBN 90858)
Christian Schreiber (SBN 245597)
42 Miller Avenue
Mill Valley, California 94941
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

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Additional Counsel Listed on Signature Page

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Attorneys for Plaintiff and the Proposed Classes

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MARK C. MAO (SBN 236165)
[e-mail]
SHEILA M. PHAM (SBN 293673)
[e-mail]
TROUTMAN SANDERS LLP
580 California Street, Suite 1100
San Francisco, California 94104
Telephone:
[phone]
Facsimile:
[phone]
Additional Counsel listed on Signature Page
Attorneys for Defendant Clarity Services, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Case No. 3:16-CV-06583-MMC

JOYCE BENTON,
Plaintiff,
v.
CLARITY SERVICES, INC., and DOES 1
through 50, inclusive,
Defendants.

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STIPULATED PROTECTIVE ORDER
RE: CONFIDENTIAL INFORMATION
Hon. Maxine M. Chesney

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[PROPOSED] PROTECTIVE ORDER
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WHEREAS the parties in the action entitled Benton v. Clarity Services, Inc. pending in the

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United States District Court, Northern District of California, Case No. 3:16-cv-06583-MMC (“the

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Litigation”), anticipate that during the course of the Litigation documents and/or information of a

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sensitive, private and confidential nature may be produced in the course of discovery or otherwise

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disclosed or provided, and the parties wish to protect the confidentiality of such documents or

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information while ensuring that discovery may be pursued with a minimum of delay and expense;

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THEREFORE the following parties, Plaintiff Joyce Benton (“Plaintiff”) and Defendant

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Clarity Services, Inc. (“Defendant”) (hereafter “Party or Parties”) hereby stipulate and agree to

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the following proposed Protective Order Re: Confidential Information (“Protective Order”),

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subject to court approval:

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1. SCOPE OF PROTECTIVE ORDER

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a) The protection of this Protective Order may be invoked with respect to any

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documents, testimony, information, and things (collectively “materials”) produced or created in

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this action that contain Confidential Information. As used herein, the term “Confidential

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Information” includes testimony and records, including but not limited to discovery responses,

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whether hardcopy or electronic, that contain confidential and/or proprietary trade secret

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information, including, but not limited to, technical and competitively-sensitive information

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protected by law, and information protected by California’s constitution and common law right to

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privacy. As set forth below, materials containing Confidential Information may be designated as

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“Confidential.” Such designation may be made by any Party or non-party producing materials in

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this action (“Producing Party”), or may be made by a Party who determines, in good faith, that

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materials produced by a non-party contain “Confidential” information (“Designating Party”) even

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though not so designated by the Producing Party.

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b) In the event that additional Parties join or are joined in this litigation, they shall not

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have access to materials designated as “Confidential” pursuant to this Protective Order until they

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have executed and, at the request of any Party, filed with the court their agreement to be bound by

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this Protective Order.

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[PROPOSED] PROTECTIVE ORDER
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2. DESIGNATION OF MATERIALS AS CONFIDENTIAL

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a) “Confidential” materials shall include only such information as the Producing or

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Designating Party in good faith contends should be protected pursuant to this Protective Order on

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the grounds that the information is properly subject to protection under existing California or

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federal law. Indiscriminate or routinized designations are prohibited.

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b) In making the designation of materials pursuant to this Protective Order, the

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Producing or Designating Party shall give due consideration to whether the information contained

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in the materials (1) has been produced, disclosed or made available to the public in the past, (2)

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has been published, communicated or disseminated to others not obligated to maintain the

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confidentiality of the information contained therein, (3) has not been preserved or maintained in a

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manner calculated to preserve its confidentiality, or (4) is available from a third party or

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commercial source that is not obligated to maintain its confidentiality or privacy. The Producing

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or Designating Party shall also give due consideration to the age of the materials.

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c) The protection of this Protective Order may be invoked with respect to materials in
the following manner:

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i.

Documents when produced or otherwise designated shall bear the clear and

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legible designation “Confidential” on each page of the document, except that in the case of

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multi-page documents bound together by staple or other permanent binding, the

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“Confidential” legend need only be affixed to the first page in order for the entire

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document to be treated as “Confidential.” Documents produced prior to the entry of this

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Protective Order may be designated as “Confidential” within thirty (30) days after entry,

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and documents produced by non-parties may be designated “Confidential” by a Party

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within thirty (30) days after such production.

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ii.

As to discovery requests or the responses thereto, the pages of such

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requests or responses containing “Confidential” materials shall be so marked, and the first

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page of the requests or responses shall bear a legend substantially stating that “This

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Document Contains ‘Confidential’ Material”;

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[PROPOSED] PROTECTIVE ORDER
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iii.

As to deposition testimony, “Confidential” treatment may be invoked by:

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(1) declaring the same on the record at the deposition with instructions to so designate the

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cover of the deposition transcript, or (2) designating specific pages as “Confidential” and

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serving such designations within thirty (30) days of receipt of the transcript of the

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deposition in which the designations are made. All deposition testimony shall be treated as

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“Confidential” pending receipt of a transcript of the deposition.

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d) If any Producing Party inadvertently produces or discloses any “Confidential”

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information without marking it with an appropriate legend, the Producing Party or a Designating

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Party shall promptly notify the receiving party that the information should be treated in

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accordance with the terms of this Protective Order, and shall forward appropriately stamped

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copies of the items in question. Within five (5) days of the receipt of substitute copies, the

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receiving party shall return the previously unmarked items and all copies thereof. The inadvertent

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disclosure shall not be deemed a waiver of confidentiality, and such designation shall be made as

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soon as possible after the discovery of the inadvertent production or disclosure.

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3. CHALLENGES TO “CONFIDENTIAL” DESIGNATION

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a) Any Party believing materials designated as “Confidential” by another is not

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entitled to such designation shall notify the Producing or Designating Party of that belief in

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writing, provide a brief statement of the basis for that belief with service on all other Parties, and

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allow ten (10) days for the Producing or Designating Party to respond.

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b) If a Producing or Designating Party does not modify its designation of the

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materials in response to a notice pursuant to paragraph 3(a) of this Protective Order, then the

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Party objecting to the “Confidential” designation may move the court for an order to remove such

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designation. To maintain “Confidential” status, the burden shall be on the proponent of

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confidentiality to show that the material or information is entitled to protection under applicable

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law. Unless and until a “Confidential” designation is voluntarily withdrawn by the Producing or

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Designating party, or the court issues an order modifying or removing such designation, the

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provisions of the Protective Order shall continue to apply.

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[PROPOSED] PROTECTIVE ORDER
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4. DISCLOSURE OF MATERIALS DESIGNATED AS CONFIDENTIAL

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a) Materials designated “Confidential,” as well as summaries, excerpts and extracts

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thereof, shall not be disclosed to or made accessible to any person except as specifically permitted

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by this Protective Order. Materials designated “Confidential” shall be used solely in the

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preparation for trial and/or trial of the Litigation, and shall not be used at any time for any other

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purpose.

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b) Materials designated as “Confidential” may be disclosed only to:

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i.

The court, its clerks and research attorneys;

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ii.

Attorneys actively involved in the representation of a Party, their

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secretaries, paralegals, legal assistants, and other staff actively involved in assisting in the

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Litigation;

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iii.

In-house attorneys employed by any Party and working on the Litigation,

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and their secretaries, paralegals, legal assistants, and other staff actively involved in

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assisting in the Litigation;

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iv.

The Parties, officers and employees of the Parties assisting counsel in the

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preparation of the case for trial, motion practice or appellate proceedings, provided that

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the materials designated “Confidential” may be disclosed to such persons only to the

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extent such disclosure is, in the judgment of counsel, reasonably necessary to counsel’s

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preparation of the case;

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v.

Any expert or consultant who is retained by any of the Parties or their

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counsel of record to assist counsel in the Litigation, and any employee of such an expert

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assisting in the Litigation (hereafter, “Experts”);

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vi.

Any person called to testify as a witness either at a deposition or court

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proceeding in the Litigation, but only to the extent necessary for the purpose of assisting

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in the preparation or examination of the witness, and also only if such persons are

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informed of the terms of this Protective Order, provided with a copy of the Protective

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Order and agree, on the record, that they are bound by the terms of the Protective Order

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[PROPOSED] PROTECTIVE ORDER
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and are required not to disclose information contained in the materials designated as

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“Confidential”;

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vii.

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Deposition and court reporters and their support personnel, for purposes of

preparing transcripts;

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viii.

Employees of outside copying services and other vendors retained by

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counsel to assist in the copying, imaging, handling or computerization of documents, but

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only to the extent necessary to provide such services in connection with the Litigation and

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only after being informed of the provisions of this Protective Order and agreeing to abide

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by its terms;

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ix.

Mediators or other Alternative Dispute Resolution neutrals (including their

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employees, agents and contractors) to whom disclosure is reasonably necessary to their

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involvement in the Litigation; and

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Any person who created a document or was the recipient thereof.

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c) Each person to whom “Confidential” materials are disclosed (other than persons

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described in paragraphs 4(b)(i), (vii), and (viii)) shall execute a non-disclosure agreement in the

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form attached hereto as Exhibit A prior to their receipt of the Confidential materials, and shall

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agree to be bound by this Protective Order and to be subject to the jurisdiction of this court for the

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purposes of enforcement, except that individuals identified in paragraphs 4(b)(ii), (iii), (iv), and

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(x) shall not be required to execute such an agreement, provided that counsel making disclosure to

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such individuals advise them of the terms of the Protective Order and they agree to be bound

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thereby. Counsel disclosing “Confidential” materials to persons required to execute non-

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disclosure agreements shall retain all such executed agreements. Copies of the executed

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agreements shall be preserved by counsel and shall be provided to the opposing party if the court

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so orders upon a showing of good cause.

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5. USE IN COURT PROCEEDINGS - FILING OF COURT PAPERS

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a) Nothing contained in this Protective Order shall be construed to prejudice any

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Party’s right to use at trial or in any hearing before the court any Confidential Information,

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provided that reasonable notice of the intended use of such material shall be given to all counsel
[PROPOSED] PROTECTIVE ORDER
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of record in order to enable the parties to arrange for appropriate safeguards, and provided that the

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rules applicable to sealing records, as further addressed below, are followed. Likewise, nothing in

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this Protective Order shall be dispositive of any issues of relevance, discoverability or

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admissibility.

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b) Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Similarly, a Designating Party must

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comply with Civil Local Rule 79-5(e) with respect to the filing of documents designated as

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Confidential pursuant to this Order. Protected Material may only be filed under seal pursuant to a

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court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil

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

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Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection

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under the law. If a Receiving Party’s request to file Protected Material under seal is denied by the

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court, then the Receiving Party may file the information in the public record pursuant to Civil

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

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6. MODIFICATION

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Nothing in this Protective Order shall preclude any Party from applying to the court to

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modify this Protective Order to provide for additional safeguards to ensure the confidentiality of

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materials produced in this action or otherwise modify this Protective Order for good cause shown.

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In the event that documents or information that warrant heightened protection as for “Attorney’s

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Eyes Only” are requested to be produced, the Parties agree to negotiate in good faith to modify

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this Protective Order to provide for such protection.

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7. DISPOSITION OF MATERIALS AT CONCLUSION OF CASE

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All materials designated as “Confidential” shall remain in the possession of the counsel of

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record of the Party to whom such materials are produced, and they shall not permit any such

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materials to leave their possession, except that copies of such materials may be made for the use

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of persons to whom disclosure may be made under paragraph 4(b) of this Protective Order, or for
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the purpose of submission to the court under paragraph 5 of this Protective Order. Within sixty

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(60) days after this action is concluded, including the expiration or exhaustion of all rights to

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appeal, the Designating Party may request the Receiving Party (a) return all documents and

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copies containing “Confidential” materials (including, but not limited to, copies in the possession

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or control of any expert or employee) to the Producing Party, except any copies required to be

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retained under applicable Rules of Professional Conduct; or (b) promptly destroy all such

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materials and copies. The Receiving Party shall confirm, in writing, that she or it has returned or

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destroyed all applicable documents in accordance with this Order.

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8. RETENTION OF JURISDICTION

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The Court shall retain jurisdiction over all persons to be bound by the terms of this

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Protective Order, during the pendency of this action and for such time thereafter as is needed to

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carry out its terms.

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9. MISCELLANEOUS ITEMS

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Nothing herein shall affect or restrict the rights of any party to use its own documents or

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information or to use information or documents obtained or developed independently of materials

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afforded Confidential treatment pursuant to this Order.

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Third parties who are the subject of discovery requests, subpoenas, or depositions in this

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case may take advantage of the provisions of this Order by providing Plaintiff and Defendant with

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written notice that they intend to comply with and be bound by the terms of this Order.

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Furnishing of consumer report information regarding Plaintiff or the putative class

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members to persons identified in Paragraph 4 of this Order for the purposes of litigating this case

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is authorized by this Order pursuant to 15 U.S.C. § 1681b(a)(1).

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[PROPOSED] PROTECTIVE ORDER
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DATED: April 14, 2017

CHAVEZ & GERTLER LLP

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FEINSTEIN DOYLE PAYNE & KRAVEC, LLC

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By:
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/s/ Christian Schreiber
Christian Schreiber

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DATED: April 14, 2017

TROUTMAN SANDERS LLP

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By:

/s/ David M. Gettings
David M. Gettings

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Additional Counsel for Plaintiff:

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FEINSTEIN DOYLE PAYNE & KRAVEC, LLC
James M. Pietz (to be admitted pro hac vice)
Gregory A. Murray (to be admitted pro hac vice)
429 Fourth Avenue
Law & Finance Building, Suite 1300
Pittsburgh, PA 15219
Telephone:
412-281-8400
[e-mail]
[e-mail]

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Additional Counsel for Defendant:

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RONALD I. RAETHER, JR. (SBN 303118)
[e-mail]
TROUTMAN SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, CA 92614-2545
Telephone:
[phone]

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DAVID M. GETTINGS (Admitted Pro Hac Vice)
[e-mail]
TROUTMAN SANDERS LLP
222 Central Park Avenue Suite 2000
Virginia Beach, VA 23462
Telephone: [phone]

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ATTESTATION OF FILER

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Pursuant to L.R. 5-1(i)(3), the undersigned hereby attests that all parties have concurred
in the filing of this stipulation.

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/s/ David M. Gettings
David M. Gettings

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[PROPOSED] PROTECTIVE ORDER
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ORDER

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WHEREAS the parties have entered into a Stipulation for Protective Order re:

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Confidential Information (“Protective Order”), and good cause appearing therefore, the Court

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HEREBY makes the Stipulation the Order of the Court.
IT IS SO ORDERED.

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April 17, 2017
DATE: _________________

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_______________________________
Honorable Maxine M. Chesney
United States District Court Judge

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[PROPOSED] PROTECTIVE ORDER
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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

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District of California on ___________, 2017 in the case of Benton v. Clarity Services, Inc., Case

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No. 3:16-cv-06583-MMC and the Stipulated Protective Order issued by the Superior Court for

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the County of Alameda on ________, 2017 in the case of Benton v. Clarity Services, Inc., Case

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No. RG16833457. I agree to comply with and to be bound by all the terms of these Stipulated

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Protective Orders and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to these Stipulated Protective

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Orders to any person or entity except in strict compliance with the provisions of these Orders.

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I further agree to submit to the jurisdiction of the appropriate court for the purpose of

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enforcing the terms of either Stipulated Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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[PROPOSED] PROTECTIVE ORDER
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