Pinzon v. Simpson Gumpertz & Heger Inc.

Filing 26

STIPULATED PROTECTIVE ORDER. Signed by Judge Yvonne Gonzalez Rogers on 5/14/15. (fs, COURT STAFF) (Filed on 5/14/2015)

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Aaron P. Minnis, Esq. (SBN202935)
Sonya L. Smallets, Esq. (SBN226190~
Sean D. McHenry, Esq. SBN284175
MINNIS & SMALLETS LLP
369 Pine Street, Suite 500
San Francisco, CA 94104
T: ~415~ 551-0885
F: 415 683-7157
E: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
LUISA PINZON
SARAH E. ROBERTSON #142439
CASEY L. WILLIAMS #280324
DONAHUE FITZGERALD LLP
1999 Harrison Street, 25th Floor
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants
SIMPSON GUMPERTZ & HEGER INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION
Case No. 14-cv-05562 YGR

LUISA PINZON,

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[PROPOSED] AND STIPULATED
PROTECTIVE ORDER

PLAINTIFF,

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vs.

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SIMPSON GUMPERTZ & HEGER, INC.
and DOES 1-10,
DEFENDANTS.

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

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

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

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

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following Stipulated Protective Order. The parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the protection

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it affords from public disclosure and use extends only to the limited information or items that

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are entitled to 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 does not

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entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
2.2

"CONFIDENTIAL" Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal

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Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff).
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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

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medium 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

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

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witness or as a consultant in this action.
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2.7

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

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House Counsel: attorneys who are employees of a party to this action. House

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.

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Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party.

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2.10

Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their support

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staffs).

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2.11

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.

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2.12

Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations,

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and 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

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

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

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Producing Party.

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3.

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

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

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

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any testimony, conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material. However, the protections conferred by this Stipulation and Order do not
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cover the following information: (a) any information that is in the public domain at the time of

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

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Receiving Party as a result of publication not involving a violation of this Order, including

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becoming part of the public record through trial or otherwise; and (b) any information known

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to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the

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disclosure from a source who obtained the information lawfully and under no obligation of

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confidentiality to the Designating Party. Any use of Protected Material at trial shall be

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governed by a separate agreement or order.

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4.

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

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

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court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal

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of all claims and defenses in this action, with or without prejudice; and (2) final judgment

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herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or

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reviews of this action, including the time limits for filing any motions or applications for

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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

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Party or 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 specific material that qualifies under the appropriate

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standards. The Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify - so that other portions of

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the material, documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party's attention that information or items that it designated for

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protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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

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

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be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,

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

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Producing Party affix the legend "CONFIDENTIAL" to each page that contains protected

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material. If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins). A Party or Non-Party that makes original documents or

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materials available for inspection need not designate them for protection until after the

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inspecting Party has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for inspection shall be

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deemed "CONFIDENTIAL." Mter the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the "CONFIDENTIAL" legend to each page that

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contains Protected Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by

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making appropriate markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition, hearing, or

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other proceeding, all protected testimony.

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(c) 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 exterior of the

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container or containers in which the information or item is stored the legend

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"CONFIDENTIAL." If only a portion or portions of the information or item warrant

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protection, the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

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 Designating

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Party's right to secure protection under this Order for such material. Upon timely correction of

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a designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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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 confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

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

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process 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, the

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

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with this specific paragraph of the Protective Order. The parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring directly (in voice to voice

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dialogue; other forms of communication are not sufficient) within 14 days of the date of

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service of notice. In conferring, the Challenging Party must explain the basis for its belief that

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the confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if no

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

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

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

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the parties shall follow the Court's Standing Order in Civil Cases regarding

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Discovery and Discovery Motions. The parties may file a joint letter brief regarding retaining

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confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties

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agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.

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Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or

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14 day period (set forth above) with the Court shall automatically waive the confidentiality

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designation for each challenged designation. If, after submitting a joint letter brief, the Court

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allows that a motion may be filed, any such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements

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imposed in the preceding paragraph. The Court, in its discretion, may elect to transfer the

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discovery matter to a Magistrate Judge.

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In addition, the parties may file a joint letter brief regarding a challene;e to a

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confidentiality designation at any time if there is good cause for doing so, including a

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challenge to the designation of a deposition transcript or any portions thereof. If, after

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submitting a joint letter brief, the Court allows that a motion may be filed, any motion brought

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pursuant to this provision must be accompanied by a competent declaration affirming that the

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movant has complied with the meet and confer requirements imposed by the preceding

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paragraph. The Court, in its discretion, may elect to refer the discovery matter to a Magistrate

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Judge.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing

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to file a letter brief to retain confidentiality as described above, all parties shall continue to

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afford the material in question the level of protection to which it is entitled under the

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Producing Party's designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed or 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 may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions

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of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location

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and in a secure manner that ensures that access is limited to the persons authorized under this

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Order.

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7.2

Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated "CONFIDENTIAL" only to:

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(a) the Receiving Party's Outside Counsel of Record in this action, as well as

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

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the information for this litigation and who have signed the "Acknowledgment and Agreement

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to Be Bound" that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(c) 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 signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, mediators, professional jury or trial

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consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably

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necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be

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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 Agreement to Be

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Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed 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 disclosed to anyone

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except as permitted under this Stipulated Protective Order.
(g) 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 information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a 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

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"CONFIDENTIAL," that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in

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

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

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Order; and

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(c) 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

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subpoena or court order shall not produce any information designated in this action as

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"CONFIDENTIAL" before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party's permission. The Designating

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Party shall bear the burden and expense of seeking protection in that court of its confidential

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material - and nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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9.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

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THIS LITIGATION

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

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this action and designated as "CONFIDENTIAL." Such information produced by Non-Parties

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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

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seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party's confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party's confidential information, then

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the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this litigation, the relevant discovery request(s), and a reasonably specific description

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of the information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party's confidential information responsive to the discovery request. If the Non-Party

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before

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a determination by the court. Absent a court order to the contrary, the Non-Party shall bear

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the burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this Stipulated

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Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

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

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of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures

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were made of all the terms of this Order, and (d) request such person or persons to execute the

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"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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

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

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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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.
12.2

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

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Order 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 Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.
12.3

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Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party may

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not file in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material

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

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Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only

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upon a request establishing that the Protected Material at issue is privileged, protectable as a

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trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to

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file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court,

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

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

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13.

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FINAL DISPOSITION
Within 60 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

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material. As used in this subdivision, "all Protected Material" includes all copies, abstracts,

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

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,

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

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

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

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constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: May 7, 2015

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Is/ Sonya Smallets
AARON P. MINNIS
MINNIS & SMALLETS LLP
Attorneys for Plaintiff
SONYA SMALLETS

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Dated: May 7, 2015
Is/ Casey Williams
DONAHUE FITZGERALD LLP
Attorneys for Simpson Gumpertz & Heger
CASEY WILLIAMS

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: ___________________
May 14, 2015

Judge Yvonne Gonzalez Rogers
United States District Court Judge

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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], o f - - - - - - - [print

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

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

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for the Northern District of California on [_ _ _-.~] in the case of _ _ _ _ _ Pinzon v.

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Simpson Gumpertz Heger Inc., Case No.-cv--05562 YGR. 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

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that failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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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

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby a p p o i n t - - - - - - - - - - - [print or type full name] of

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[print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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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] AND STIPULATED PROTECTIVE ORDER
CASE NO.: 14- CV-05562 YGR

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