Villanueva v. Morpho Detection, Inc

Filing 49

STIPULATED PROTECTIVE ORDER[AS MODIFIED BY THE COURT]. Signed by Judge Yvonne Gonzalez Rogers on 8/11/14. (fs, COURT STAFF) (Filed on 8/11/2014)

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1 2 3 4 5 6 HOFFMAN EMPLOYMENT LAWYERS, LLP Michael Hoffman (SBN 154481) Chad Pradmore (SBN 284615) 580 California St., Suite 1600 San Francisco, California 94104 Telephone: (415) 362-1111 Facsimile: (415) 362-1112 Attorneys for Plaintiff HAROLD VILLANUEVA 7 8 9 10 United States District Court Northern District of California 11 12 13 MORGAN, LEWIS & BOCKIUS LLP Melinda Riechert (SBN 65504) Michael Schlemmer (SBN 250000) 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306 Telephone: (650) 843-4000 Facsimile: (650) 843-4001 Attorneys for Defendant MORPHO DETECTION, LLC 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 18 HAROLD VILLANUEVA, individually and on behalf of all others similarly situated, and the general public, 19 Plaintiff, 20 MORPHO DETECTION, INC., and DOES 1 to 10, inclusive, 25 STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION AS MODIFIED BY THE COURT Complaint filed: November 20, 2013 Defendant. 23 24 CV 13-05390-YGR v. 21 22 Case No. 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 26 confidential, proprietary, or private information for which special protection from public disclosure 27 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 28 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective DB2/ 25171691.3 1 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 2 or responses to discovery and that the protection it affords from public disclosure and use extends 3 only to the limited information or items that are entitled to confidential treatment under the 4 applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 5 this Stipulated Protective Order does not entitle them to file confidential information under seal; 6 Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 7 applied when a party seeks permission from the court to file material under seal. 8 2. DEFINITIONS 9 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or 10 11 items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 12 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 13 Civil Procedure 26(c). 14 15 16 17 18 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 19 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 20 transcripts, and tangible things), that are produced or generated in disclosures or responses to 21 discovery in this matter. 22 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 23 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 24 consultant in this action. 25 26 27 28 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. DB2/ 25171691.3 2 2.9 1 Outside Counsel of Record: attorneys who are not employees of a party to this action 2 but are retained to represent or advise a party to this action and have appeared in this action on 3 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.10 4 5 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.11 6 7 10 2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.13 11 12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 8 9 Party: any party to this action, including all of its officers, directors, employees, Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.14 13 Receiving Party: a Party that receives Disclosure or Discovery Material from a 14 Producing Party. 15 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as 16 17 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 18 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 19 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 20 However, the protections conferred by this Stipulation and Order do not cover the following 21 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 22 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 23 publication not involving a violation of this Order, including becoming part of the public record 24 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 25 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 26 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 27 Protected Material at trial shall be governed by a separate agreement or order. 28 /// DB2/ 25171691.3 3 1 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 2 3 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 4 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 5 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 6 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 7 time limits for filing any motions or applications for extension of time pursuant to applicable law. 8 5. 9 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 10 Non-Party that designates information or items for protection under this Order must take care to 11 limit any such designation to specific material that qualifies under the appropriate standards. The 12 Designating Party must designate for protection only those parts of material, documents, items, or 13 oral or written communications that qualify – so that other portions of the material, documents, 14 items, or communications for which protection is not warranted are not swept unjustifiably within 15 the ambit of this Order. 16 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 17 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 18 encumber or retard the case development process or to impose unnecessary expenses and burdens on 19 other parties) expose the Designating Party to sanctions. 20 If it comes to a Designating Party’s attention that information or items that it designated for 21 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 22 that it is withdrawing the mistaken designation. 23 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 24 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 25 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 26 designated before the material is disclosed or produced. 27 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 28 DB2/ 25171691.3 4 1 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 2 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion 3 or portions of the material on a page qualifies for protection, the Producing Party also must clearly 4 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 5 A Party or Non-Party that makes original documents or materials available for inspection need not 6 designate them for protection until after the inspecting Party has indicated which material it would 7 like copied and produced. During the inspection and before the designation, all of the material made 8 available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 9 identified the documents it wants copied and produced, the Producing Party must determine which 10 documents, or portions thereof, qualify for protection under this Order. Then, before producing the 11 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 12 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 13 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 14 appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 15 16 Designating Party identify on the record, before the close of the deposition, hearing, or other 17 proceeding, all protected testimony. (c) for information produced in some form other than documentary and for any other 18 19 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 20 containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a 21 portion or portions of the information or item warrant protection, the Producing Party, to the extent 22 practicable, shall identify the protected portion(s). 5.3 23 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 24 designate qualified information or items does not, standing alone, waive the Designating Party’s 25 right to secure protection under this Order for such material. Upon timely correction of a 26 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 27 accordance with the provisions of this Order. 28 /// DB2/ 25171691.3 5 1 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 3 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 4 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 5 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 6 confidentiality designation by electing not to mount a challenge promptly after the original 7 designation is disclosed. 8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 9 by providing written notice of each designation it is challenging and describing the basis for each 10 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 11 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 12 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 13 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 14 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 15 Party must explain the basis for its belief that the confidentiality designation was not proper and 16 must give the Designating Party an opportunity to review the designated material, to reconsider the 17 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 18 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 19 has engaged in this meet and confer process first or establishes that the Designating Party is 20 unwilling to participate in the meet and confer process in a timely manner. 21 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 22 intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding 23 Discovery and Discovery Motions. 24 retaining confidentiality within 21 days of the initial notice of challenge or within 14 days of 25 26 27 28 The parties may file a joint letter brief regarding the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or 14 day period (set forth above) with the Court shall automatically waive the confidentiality designation for each challenged designation. If, after submitting a DB2/ 25171691.3 6 1 joint letter brief, the Court allows that a motion may be filed, any such motion must be 2 accompanied by a competent declaration affirming that the movant has complied with the 3 meet and confer requirements imposed in the preceding paragraph. The Court, in its 4 discretion, may elect to transfer the discovery matter to a Magistrate Judge. In addition, the parties may file a joint letter brief regarding a challenge to a 5 6 7 confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof. If, after submitting a joint letter brief, the Court allows that a motion may be filed, any motion 8 brought pursuant to this provision must be accompanied by a competent declaration 9 10 11 affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. The Court, in its discretion, may elect to transfer the discovery matter to a Magistrate Judge. 12 The burden of persuasion in any such challenge proceeding shall be on the 13 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to 14 harass or impose unnecessary expenses and burdens on other parties) may expose the 15 Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality 16 designation by failing to file letter brief to retain confidentiality as described above, all 17 parties shall continue to afford the material in question the level of protection to which it is 18 entitled under the Producing Party’s designation until the court rules on the challenge. 19 7. 20 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 21 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the litigation has 24 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 25 DISPOSITION). 26 27 28 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 DB2/ 25171691.3 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 7 1 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 2 information or item designated “CONFIDENTIAL” only to: (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 3 4 of said Outside Counsel of Record; (b) the officers, directors, and employees (including House Counsel) of the Receiving 5 6 Party; (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 7 8 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 9 to Be Bound” (Exhibit A); 10 (d) the court and its personnel; 11 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 12 Professional Vendors; (f) witnesses in the action to whom disclosure is reasonably necessary and who have 13 14 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by 15 the Designating Party or ordered by the court (noting that pages of transcribed deposition testimony 16 or exhibits to depositions that reveal Protected Material must be separately bound by the court 17 reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective 18 Order); or (g) the author or recipient of a document containing the information or a custodian or 19 20 other person who otherwise possessed or knew the information. 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 22 LITIGATION 23 If a Party is served with a subpoena or a court order issued in other litigation that compels 24 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party 25 must: (a) promptly notify in writing the Designating Party. Such notification shall include a 26 27 copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 28 DB2/ 25171691.3 8 1 other litigation that some or all of the material covered by the subpoena or order is subject to this 2 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 3 4 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the subpoena 5 6 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 7 before a determination by the court from which the subpoena or order issued, unless the Party has 8 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 9 expense of seeking protection in that court of its confidential material – and nothing in these 10 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 11 disobey a lawful directive from another court. 12 9. 13 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 14 15 action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in 16 connection with this litigation is protected by the remedies and relief provided by this Order. 17 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 18 protections. 19 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 20 Party’s confidential information in its possession, and the Party is subject to an agreement with the 21 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (1) promptly notify in writing the Requesting Party and the Non-Party that some or 22 23 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 24 25 this litigation, the relevant discovery request(s), and a reasonably specific description of the 26 information requested; and 27 (3) make the information requested available for inspection by the Non-Party. 28 (c) If the Non-Party fails to object or seek a protective order from this court within 14 DB2/ 25171691.3 9 1 days of receiving the notice and accompanying information, the Receiving Party may produce the 2 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 3 seeks a protective order, the Receiving Party shall not produce any information in its possession or 4 control that is subject to the confidentiality agreement with the Non-Party before a determination by 5 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 6 seeking protection in this court of its Protected Material. 7 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 8 9 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 10 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 11 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) 12 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 13 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 14 Be Bound” that is attached hereto as Exhibit A. 15 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 16 MATERIAL 17 When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 18 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 19 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 20 modify whatever procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 22 parties reach an agreement on the effect of disclosure of a communication or information covered by 23 the attorney-client privilege or work product protection, the parties may incorporate their agreement 24 in the stipulated protective order submitted to the court. 25 12. 26 27 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 28 DB2/ 25171691.3 10 12.2 1 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 4 Party waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 12.3 6 Filing Protected Material. Without written permission from the Designating Party or a 7 court order secured after appropriate notice to all interested persons, a Party may not file in the 8 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 9 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 10 pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant 11 to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the 12 Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to 13 protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 14 to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information 15 in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 16 13. 17 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 18 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 19 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 23 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 24 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 25 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 26 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 28 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant DB2/ 25171691.3 11 1 and expert work product, even if such materials contain Protected Material. Any such archival copies 2 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 3 Section 4 (DURATION). 4 /// 5 /// 6 /// 7 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 9 MORGAN, LEWIS & BOCKIUS LLP Dated: August 7, 2014 10 By /s/ Melinda S. Riechert MELINDA S. RIECHERT MICHAEL D. SCHLEMMER Attorneys for Defendant MORPHO DETECTION, INC. 11 12 13 14 Dated: August 5, 2014 EMPLOYMENT LAWYERS 15 16 By /s/ Leonard Emma (as authorized on 8/5/14) MICHAEL HOFFMAN LEONARD EMMA CHAD PRADMORE Attorneys for Plaintiff HAROLD VILLANUEVA 17 18 19 20 21 22 PURSUANT TO STIPULATION, IT IS SO ORDERED. 23 24 DATED: August 11, 2014 25 _____________________________________ Hon. Yvonne Gonzalez Rogers United States District Judge 26 27 28 DB2/ 25171691.3 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________________, of __________________________________, 4 declare under penalty of perjury that I have read in its entirety and understand the Stipulated 5 Protective Order that was filed with the United States District Court for the Northern District of 6 California on July 28, 2014 in the case of Harold Villanueva on behalf of all others similarly 7 situated v. Morpho Detection Inc., Case No. CV 13-05390-YGR. I agree to comply with and to be 8 bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 9 failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 10 solemnly promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions of 12 this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 17 Date: __________________________________ 18 19 City and State where sworn and signed: __________________________________ 20 21 Printed name: __________________________________ 22 23 Signature: __________________________________ 24 25 26 27 28 DB2/ 25171691.3 13

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