Local Search Association v. City & County of San Francisco et al

Filing 102

STIPULATION AND PROTECTIVE ORDER re 99 Stipulation, filed by City & County of San Francisco, Local Search Association, Board of Supervisors of the City & County of San Francisco, Edwin M. Lee. Signed by Magistrate Judge Donna M. Ryu on 10/27/11. (ig, COURT STAFF) (Filed on 10/27/2011)

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DENNIS J. HERRERA, State Bar #139669
City Attorney
DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
CHRISTINE VAN AKEN, State Bar #241755
FRANCESCA GESSNER, State Bar #247553
Deputy City Attorneys
1390 Market Street, 7th Floor
San Francisco, California 94102
Telephone:
[phone]
Facsimile:
[phone]
E-Mail:
[e-mail]

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LOCAL SEARCH ASSOCIATION,

Case No. CV-11-2776 SBA (DMR)

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Plaintiff,

STIPULATION AND PROTECTIVE ORDER

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vs.

Date Action Filed
Trial Date:

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June 7, 2011
Not set

CITY AND COUNTY OF SAN FRANCISCO;
BOARD OF SUPERVISORS OF THE CITY
AND COUNTY OF SAN FRANCISCO; and
EDWIN M. LEE, in his official capacity as
MAYOR of the City and County of San
Francisco,
Defendants.

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Pursuant to Federal Rule of Civil Procedure 26(c), the parties have met and conferred and

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agree that the discovery of CONFIDENTIAL INFORMATION in this matter shall be made pursuant

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to the terms of this PROTECTIVE ORDER.

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THEREFORE, plaintiff Local Search Association (“LSA”) and Defendants the City and

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County of San Francisco, the Board of Supervisors of the City and County of San Francisco, and San

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Francisco Mayor Edwin M. Lee (collectively, “the City”) stipulate, though their attorneys of record, to

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the entry of an order as follows:

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STIPULATION & ORDER
CASE NO. CV-11-2776 SBA (DMR)

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1.

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

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

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, the parties hereby stipulate to and petition the court to

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enter the following Stipulated Protective Order.
1.2

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As reflected in the September 13, 2011 agreement set forth in the parties’ Joint Report

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Pursuant to Fed. R. Civ. P. 26(f) (see Dkt. No. 61) (the “Member Documents

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Agreement”), Non-Party LSA members AT&T Advertising Solutions (“AT&T”) and

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AGI Publishing, Inc., d/b/a Valley Yellow Pages (“AGI”) have consented to make

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certain documents available to the City through Counsel of Record for LSA in response

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to requests for production served on LSA pursuant to Fed. R. Civ. P. 34. Nothing in

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this Stipulated Protective Order shall be construed contrary to or as modifying the terms

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of the Member Documents Agreement.
1.3

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The parties acknowledge that this Order does not confer blanket protections on all

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

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

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confidential treatment under the applicable legal principles. The parties further

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acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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

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sets forth the procedures that must be followed and the standards that will be applied

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

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2.

DEFINITIONS
2.1

or items under this Order.

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

2.2

Confidential Information or Items: information (regardless of how it is generated,

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stored or maintained) or tangible things that a Designating Party has in good faith

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designated as “CONFIDENTIAL,” in addition to all confidential business information,
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trade secrets, or other documents or things qualifying for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Counsel of Record and their support staff.

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Designating Party:

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

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a Party or Non-Party that designates information or items that it

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Disclosure or Discovery Material: all items or information, regardless of the medium

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

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

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disclosures or responses to discovery in this matter.

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2.6

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

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

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or as a consultant in this action or who is employed by a Party or its counsel and is

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providing expert services in this action.

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2.7

Counsel” does not include Counsel of Record or any other outside counsel.

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2.8

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

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Party: any party to this action, including its officers, directors, employees, consultants,
retained experts, and Counsel of Record (and their support staffs).

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Counsel of Record: attorneys at Mayer Brown LLP or the Office of the San Francisco
City Attorney.

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Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action, including but not limited to AT&T and AGI.

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House Counsel: attorneys who are employees of LSA, AT&T, or AGI. “House

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

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

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

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subcontractors.

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2.13

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“CONFIDENTIAL.”

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

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

3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a Receiving

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

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

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

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

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

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Protected Material at trial shall be governed by a separate agreement or order.

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4.

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

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the

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time limits for filing any motions or applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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take care to limit any such designation to material that qualifies under the appropriate
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standards. Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process or to impose unnecessary expenses and burdens on other parties)

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expose the Designating Party to sanctions. If it comes to a Designating Party’s

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attention that information or items that it designated for protection do not qualify for

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protection, that Designating Party must promptly notify all other Parties that it is

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withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order (see,

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e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or produced. Designation in

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conformity with this Order requires:

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(a)

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

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

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the Producing Party affix the legend “CONFIDENTIAL” to each page that

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contains protected material. A Party or Non-Party that makes original

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documents or materials available for inspection need not designate them for

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protection until after the inspecting Party has indicated which material it would

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like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it

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wants copied and produced, the Producing Party must determine which

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

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before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” legend to each page that contains Protected Material.

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(b)

for testimony given in deposition or in other pretrial or trial proceedings, that

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the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.
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(c)

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for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored

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the legend “CONFIDENTIAL.”
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. In the

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event that any Confidential Information or Items is inadvertently not so designated by

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the Producing Party, any Party who notices the oversight shall promptly make it known

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to the other Parties so that the Producing Party may correct the designation. Upon

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

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assure that the material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a

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Party does not waive its right to challenge a confidentiality designation by electing not

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to mount a challenge promptly after the original designation is disclosed.

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6.2

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

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

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basis for each challenge. To avoid ambiguity as to whether a challenge has been made,

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the written notice must recite that the challenge to confidentiality is being made in

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accordance with this specific paragraph of the Protective Order. The parties shall

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attempt to resolve each challenge in good faith and must begin the process by

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conferring directly (in voice to voice dialogue; other forms of communication are not

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sufficient) within 14 days of the date of service of notice. In conferring, the

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Challenging Party must explain the basis for its belief that the confidentiality
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designation was not proper and must give the Designating Party an opportunity to

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

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

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Party may proceed to the next stage of the challenge process only if it has engaged in

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this meet and confer process first or establishes that the Designating Party is unwilling

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to participate in the meet and confer process in a timely manner.
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Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, any Party may seek judicial intervention by following the procedures for

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resolution of discovery disputes set forth in the Notice of Reference and Order re

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Discovery Procedures, ECF Document No. 69, issued by Magistrate Judge Donna M.

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Ryu on October 18, 2011. Any joint letter regarding discovery disputes, or formal

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briefing regarding discovery disputes, must include an attestation that the Party seeking

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judicial intervention has complied with the meet and confer requirements imposed in

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the preceding paragraph. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)

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may expose the Challenging Party to sanctions. The parties agree that the prevailing

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party in a joint letter or motion seeking to remove or retain a CONFIDENTIAL

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designation shall waive any entitlement to monetary sanctions, including attorney’s

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fees, unless the Designating Party clearly shows that the challenge was made for an

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improper purpose (e.g., to harass or impose unnecessary expenses or burdens on other

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parties).

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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produced by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material

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may be disclosed only to the categories of persons and under the conditions described

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in this Order. Upon final disposition of this action (see Section 4, above), a Receiving

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Party must comply with the provisions of section 13, below. Protected Material must
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be stored and maintained by a Receiving Party at a location and in a secure manner that

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ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of Confidential Information or Items. Unless otherwise ordered by the

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

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Confidential Information or Items only to:

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(a)

the Receiving Party’s Counsel of Record in this action, as well as

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employees of said Counsel of Record to whom it is reasonably necessary

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to disclose the information for this litigation;

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(b)

Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c)

House Counsel to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(f)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), with the exception that absent an

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order of this Court, no information or items designated

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CONFIDENTIAL by a Non-Party member of LSA may be disclosed to

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any officer, director, or employee of any other Non-Party member of

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LSA, under the presumption that any such disclosure is not reasonably

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necessary to the disposition of this action. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected
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Material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective

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Order.
(g)

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the author or recipient of a document containing the information, or a

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custodian or other person who otherwise possessed or knew the

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Confidential Information or Item prior to the commencement of this

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lawsuit.

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A Receiving Party may not provide Confidential Information or Items to the officers,

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officials, directors, representatives, or employees of any Party (excluding House

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Counsel) absent the written agreement of Counsel for the Producing Party or an Order

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of this Court. However, for purposes of apprising such officers, officials, directors,

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representatives, or employees of the status of this litigation, the Receiving Party may

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disclose to such persons the general nature of the Confidential Information or Items

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without disclosing its content or other details of the Confidential Information or Items.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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

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Receiving Party must:

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(i)

of the subpoena or court order;

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

(ii)

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

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

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subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and

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(iii)

cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the subpoena or court

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order shall not produce any information designated in this action as “CONFIDENTIAL” before a

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

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Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material, and nothing in these provisions should be construed

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as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

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another court.

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9.

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

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

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and designated as “CONFIDENTIAL.” Any party serving a subpoena on any Non-Party shall

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concurrently deliver a copy of this Stipulated Protective Order, and such information produced by

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

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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,

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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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

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Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties

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are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
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modify whatever procedure may be established in any e-discovery order that provides for production

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without prior privilege review. Pursuant to Federal Rules of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or information covered by

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the attorney-client privilege or work product protection, the parties may incorporate their agreement in

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any further, appropriate stipulated protective order submitted to the court.

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12.

MISCELLANEOUS
12.1

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

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12.2

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Right to Assert Other Objections. By stipulating to the entry of this Protective Order,

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

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

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Order. Similarly, no Party waives any right to object on any ground to the use in

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evidence of any of the material covered by this Protective Order.
12.3

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

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

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file in the public record in this action any Protected Material. Absent stipulation or

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court order, a Receiving Party that seeks to file under seal any Protected Material must

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comply with Civil Local Rule 79-5(d), and a Designating Party that seeks to file under

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seal any Protected Material must comply with Civil Local Rule 79-5(b)-(c). Protected

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Material may only be filed under seal pursuant to a court order authorizing the sealing

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of the specific Protected Material at issue.

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13.

FINAL DISPOSITION

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Within 30 days after the final disposition of this action, as defined in paragraph 4, each

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

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used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a written certification to

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the Producing Party (and, if not the same person or entity, to the Designating Party) by the 30-day
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deadline that (1) identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries, or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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

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

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such materials contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Stipulated Protective Order as set forth in Section 4, and this

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Court will have continuing jurisdiction to enforce the terms of this Stipulated Protective Order.

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IT IS SO STIPULATED.

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Dated: October 26, 2011

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MAYER BROWN LLP
By: ______/s/ ____________________________
Jason Wrubleski
Attorney for Plaintiff Local Search Association

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Dated: October 26, 2011

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By:______/s/ ____________________________
Christine Van Aken*
Attorney for Defendants City and County of San
Francisco, San Francisco Board of Supervisors, and San
Francisco Mayor Edwin M. Lee

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DENNIS J. HERRERA
SAN FRANCISCO CITY ATTORNEY

*THE FILER OF THIS DOCUMENT ATTESTS THAT CONCURRENCE IN THE FILING OF
THIS DOCUMENT HAS BEEN OBTAINED FROM ALL SIGNATORIES.

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ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: 10/27/11

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____________________________
HON. DONNA M. RYU
UNITED STATES MAGISTRATE JUDGE

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STIPULATION & ORDER
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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

, declare under penalty of perjury that I have read and

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

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Northern District of California on ________________ in the case of Local Search Association v. City

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and County of San Francisco, et al., Case No. CV-11-2776 SBA. I agree to comply with and to be

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

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

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addition, I specifically understand and promise the following:

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1.

I will not disclose the CONFIDENTIAL INFORMATION to any other person.

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2.

I understand that I have no power to authorize any other person to review the
CONFIDENTIAL INFORMATION.

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3.

I promise not to make copies of the CONFIDENTIAL INFORMATION.

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4.

I promise to return the CONFIDENTIAL INFORMATION to counsel for the party that
provided it to me, at or before the conclusion of this litigation.

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if

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such enforcement proceedings occur after termination of this action.

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_________________________
DATE

SIGNATURE

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_____________________
PRINT NAME

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______________________________________
CITY AND STATE WHERE SWORN/SIGNED

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STIPULATION & ORDER
CASE NO. CV-11-2776 SBA (DMR)

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