Falk et al v. Nissan North America, Inc.

Filing 70

STIPULATED PROTECTIVE ORDER. Signed by Judge Haywood S. Gilliam, Jr. on 6/15/2018. (ndrS, COURT STAFF) (Filed on 6/15/2018)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 BRONSTEIN, GEWIRTZ & GROSSMAN Shimon Yiftach, Esq. (SBN 277387) shimony@bgandg.com 1925 Century Park East, Suite 1990 Los Angeles, CA 90067 T: (424) 322-0322 F: (212) 697-7296 Attorney for Plaintiffs [Additional counsel appear on signature page] MICHAEL J. STORTZ (SBN 139386) michael.stortz@dbr.com MARSHALL L. BAKER (SBN 300987) marshall.baker@dbr.com DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, California 94105-2235 Telephone: 415-591-7500 Facsimile: 415-591-7510 E. PAUL CAULEY (pro hac vice) paul.cauley@dbr.com DRINKER BIDDLE & REATH LLP 1717 Main Street, Suite 5400 Dallas, Texas 75201-7367 Telephone: 469-357-2500 Facsimile: 469-327-0860 Attorneys for Defendant NISSAN NORTH AMERICA, INC. 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 20 21 22 MICHELLE FALK, INDHU JAYAVELU, PATRICIA L. CRUZ, DANIELLE TROTTER, CYNTHIA GARRISON, AND AMANDA MACRI, individually and on behalf of all others similarly situated, 23 24 25 26 Plaintiffs, Case No. 4:17-cv-04871-HSG STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL DISCOVERY MATERIAL Judge: Hon. Haywood S. Gilliam, Jr. v. NISSAN NORTH AMERICA, INC., Defendant. 27 28 STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL CASE NO. 4:17-CV-04871-HSG 1 As requested and agreed to by Plaintiffs Michelle Falk, Indhu Jayavelu, Patricia L. Cruz, 2 Danielle Trotter, Cynthia Garrison, and Amanda Macri (“Plaintiffs”) and Defendant Nissan North 3 America, Inc. (“NNA” or “Defendant”) (collectively, the “Parties”), the parties request that the 4 Court issue this proposed Protective Order (the “Protective Order”) to facilitate document 5 disclosure and production in the above-captioned action (referred to as the “Litigation”) under the 6 Local Rules of Northern District of California and the Federal Rules of Civil Procedure. Unless 7 modified pursuant to the terms contained in this Protective Order, this Protective Order shall 8 apply to the Litigation and remain in effect through the conclusion of the Litigation. 9 10 In support of this Protective Order, the parties state that: 1. The Litigation concerns claims that model year 2013-2017 Nissan Sentra vehicles 11 have an alleged transmission defect. 12 proprietary and business information and/or trade secrets (“Confidential Information”) that bear 13 significantly on the parties’ claims or defenses is likely to be disclosed or produced during the 14 course of discovery in the Litigation; 15 2. Documents and/or information containing confidential The parties to the Litigation may assert that public dissemination and disclosure of 16 Confidential Information could severely injure or damage the party disclosing or producing the 17 Confidential Information and could place that party at a competitive disadvantage; 18 3. Counsel for the party or parties receiving Confidential Information are presently 19 without sufficient information to accept the representation(s) made by the party or parties 20 producing Confidential Information as to the confidential, proprietary and/or trade secret nature 21 of such Confidential Information; and 22 23 4. To protect the respective interests of the parties and to facilitate the progress of disclosure and discovery in this Litigation, the following Protective Order should issue: 24 IT IS THEREFORE STIPULATED THAT: 25 1. Documents, including photographs, drawings, films, videotapes or other writings, 26 including lists or compilations thereof, answers to interrogatories, responses to other discovery 27 requests and deposition testimony or discovery by any party in this Litigation that qualify for 28 protection under Federal Rule of Civil Procedure 26(c) are referred to as “Confidential Material.” STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -2- CASE NO. 4:17-CV-04871-HSG 1 Except as otherwise indicated below, all documents, including photographs, drawings, films, 2 videotapes or other writings, including lists or compilations thereof, answers to interrogatories, 3 responses to other discovery requests and deposition testimony designated by the producing party 4 as “Confidential,” “Subject to Protective Order,” or any combination thereof, and which are 5 disclosed or produced to the attorneys for the other parties to this Litigation are Confidential 6 Material and are entitled to Confidential treatment as described below. 7 2. Each Party or Non-Party that designates information or items for protection under 8 this Order must take care to limit any such designation to specific material that qualifies under the 9 appropriate standards. The designating party must designate for protection only those documents, 10 items, or oral or written communications that qualify – so that other portions of the material, 11 documents, items, or communications for which protection is not warranted are not swept 12 unjustifiably within the ambit of this Order. Mass, indiscriminate designations are prohibited. 13 Designations that are shown to clearly have been made for an improper purpose (e.g., to 14 unnecessarily encumber or retard the case development process or to impose unnecessary 15 expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes to a 16 designating party’s attention that information or items that it designated for protection do not 17 qualify for protection, that designating party must promptly notify all other Parties that it is 18 withdrawing the mistaken designation. 19 3. Confidential Material shall not include (a) advertising materials, (b) materials that 20 on their face show that they have been published to the general public, or (c) documents that have 21 been submitted to any governmental entity without request for Confidential treatment. 22 4. All documents marked Confidential and identified as exhibits to the deposition are 23 subject to this Order. All deposition testimony shall be treated as Confidential and subject to the 24 full protection of this Order for forty-five (45) days following the deposition. After such time, 25 only those portions of any transcript designated as “Confidential” by a designating party shall be 26 deemed Confidential. To designate a portion of a transcript as “Confidential”, a party must 27 provide written notice to all Parties and the stenographer identifying, by page and line number, 28 the Confidential testimony. STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -3- CASE NO. 4:17-CV-04871-HSG 1 5. If at any time during the Litigation a party disputes the designation of discovery 2 material as Confidential, the objecting party will notify the designating party in writing of such 3 dispute, and request in writing a conference for the parties to confer in a good faith effort to 4 resolve the dispute. It shall be the responsibility of counsel for the objecting party to arrange for 5 this conference within fourteen (14) days of the request for a conference. The objecting party’s 6 notice will identify the material in dispute and explain the basis for the objection. If no response 7 is provided within fourteen (14) days of the objecting party’s request for a conference, then the 8 Confidential Material in dispute will no longer be subject to Confidential treatment as provided in 9 this Stipulated Protective Order. 10 5.1 If the parties cannot resolve a challenge without court intervention, the designating 11 party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in 12 compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of 13 challenge or within 14 days of the parties agreeing that the meet and confer process will not 14 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 15 competent declaration affirming that the movant has complied with the meet and confer 16 requirements imposed in the preceding paragraph. Failure by the designating party to make such a 17 motion including the required declaration within 21 days (or 14 days, if applicable) shall 18 automatically waive the confidentiality designation for each challenged designation. In addition, 19 the objecting party may file a motion challenging a confidentiality designation at any time if there 20 is good cause for doing so. Any motion brought pursuant to this provision must be accompanied 21 by a competent declaration affirming that the movant has complied with the meet and confer 22 requirements imposed by the preceding paragraph. 23 5.2 The burden of persuasion in any such challenge proceeding shall be on the 24 designating party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 25 or impose unnecessary expenses and burdens on other parties) may expose the objecting party to 26 sanctions. Unless the designating party has waived the confidentiality designation by failing to 27 file a motion to retain confidentiality as described above, all parties shall continue to afford the 28 material in question the level of protection to which it is entitled under the designating party’s STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -4- CASE NO. 4:17-CV-04871-HSG 1 2 designation until the Court rules on the challenge. 6. Confidential Treatment. Confidential Material and any information contained 3 therein shall not be used or shown, disseminated, copied, or in any way communicated to anyone 4 for any purpose whatsoever, except as provided below. Confidential Material may be copied only 5 by the parties’ counsel in the Litigation or by personnel or outside vendors assisting such counsel 6 and only for purposes permitted by this Protective Order, and control and distribution of 7 Confidential Material and copies thereof will be the responsibility of such counsel, who will 8 maintain all written assurances executed by such persons as provided in Paragraph 8. 9 10 7. Confidential Material and any information contained therein shall be disclosed only to the following persons (“Qualified Persons”): 11 a. The named parties, including the officers, directors, and employees (including 12 House Counsel) of the parties to whom disclosure is reasonably necessary for the 13 Litigation; 14 15 16 17 b. counsel of record in the Litigation for the designating party or party receiving Confidential Material or any information contained therein; c. Employees of such counsel (excluding experts and investigators) assigned to and necessary to assist such counsel in the preparation and trial of the Litigation; 18 d. An independent contractor or expert retained by counsel to provide assistance, 19 expert advice, technical consultation, language translation, or testimony in the 20 Litigation and the employees of any such contractors, experts, consultants or 21 similar persons when working in connection with the Litigation under direct 22 supervision of said person; 23 e. Court reporters transcribing depositions in the Litigation; 24 f. Any witness at deposition (as contemplated by Paragraph 4), trial, or hearing in the 25 26 Litigation; g. The Court (including the Court’s administrative and clerical staff). 27 Confidential Material shall not be disclosed to any other person or entity without the prior 28 written consent of the designating party or order of the Court. Any disclosure shall be only to the STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -5- CASE NO. 4:17-CV-04871-HSG 1 extent reasonably necessary for the effective prosecution and defense of the claims in the 2 Litigation. Confidential Material and any information contained therein shall be used by the 3 receiving party or parties solely for the prosecution of the Litigation and shall not be used by the 4 receiving party or parties for any other purpose or in any other litigation. 5 8. Prior to the disclosure of any of the materials or information covered by this 6 Protective Order to persons identified in paragraph 7 (d)-(f) of this Order, counsel disclosing the 7 materials or information shall present the person with a copy of this Order. After reading the 8 Order, such persons shall initial each page of a copy of the Order and shall sign the attached form 9 of “Acknowledgment of Protective Order” (the “Acknowledgement”). Copies of each such signed 10 Order and Acknowledgement shall be maintained by counsel disclosing the materials or 11 information. In the event that any of these individuals are identified or designated as witnesses or 12 as experts who may testify in the Litigation, a copy of each such signed Order and 13 Acknowledgement shall be provided to opposing counsel at the time of the designation. 14 9. Counsel of record for the party or parties receiving Confidential Material may 15 create an index of the Confidential Material and furnish it to attorneys of record representing or 16 having represented parties involved in litigation involving the claims alleged in this suit against 17 the party or parties disclosing or producing the Confidential Material. The index may only 18 identify the document, date, author, and general subject matter of any Protected Document, but 19 may not reveal the substance of any such document. Counsel for the party or parties receiving 20 Confidential Material shall maintain a current log of the names and addresses of persons to whom 21 the index was furnished. 22 10. The term “copy” as used herein means any photographic, mechanical or 23 computerized copy or reproduction of any document or thing, or any verbatim transcript, in whole 24 or in part, of such document or thing. 25 11. To the extent that Confidential Material or information contained therein are used 26 in depositions, such documents or information shall remain subject to the provisions of this 27 Protective Order. 28 12. Any court reporter or transcriber who reports or transcribes testimony in the STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -6- CASE NO. 4:17-CV-04871-HSG 1 Litigation shall agree that all “Confidential” information designated as such under this Order shall 2 remain “Confidential” and shall not be disclosed by them, except pursuant to the terms of this 3 Protective Order, and that any notes or transcriptions of such testimony (and any accompanying 4 exhibits) will be retained by the reporter or delivered to counsel of record. 5 13. Without written permission from the designating party or a court order secured 6 after appropriate notice to all interested persons, a party may not file in the public record in this 7 action any Confidential Material. A party that seeks to file under seal any Confidential Material 8 must comply with Civil Local Rule 79-5. Confidential Material may only be filed under seal 9 pursuant to a court order authorizing the sealing of the specific Confidential Material at issue. 10 Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that 11 the Confidential Material at issue is privileged, protectable as a trade secret, or otherwise entitled 12 to protection under the law. If a party’s request to file Confidential Material under seal pursuant 13 to Civil Local Rule 79-5(d) is denied by the Court, then the party may file the information in the 14 public record pursuant to Civil Local Rule 79-5(e), unless otherwise instructed by the Court. 15 14. Inadvertent or unintentional production of documents or information containing 16 Confidential Information that are not designated “Confidential” shall not be deemed a waiver, in 17 whole or in part, of a claim for Confidential treatment. 18 15. Documents unintentionally produced without designation as “Confidential” at any 19 time during the Litigation may be retroactively designated by notice in writing of the designated 20 classification applicable to each document by Bates number, and by providing replacement copies 21 of such documents with the appropriate designation, unless such documents have already been 22 filed with the Court. Upon receipt of the replacement documents, the receiving party shall 23 thereafter return the documents being replaced to the producing party. Such documents shall be 24 treated as “Confidential” from the date written notice of the designation is provided to the 25 receiving party. A person disclosing any materials that are subsequently designated as 26 “Confidential” shall in good faith assist the party making the supplemental designation in 27 retrieving such materials from all recipients not entitled to such materials under the terms of this 28 Protective Order and to prevent further disclosures except as authorized under the terms of this STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -7- CASE NO. 4:17-CV-04871-HSG 1 Protective Order. Documents to be inspected shall be treated as “Confidential” during inspection. 2 At the time of copying for the receiving parties, such inspected documents shall be stamped 3 prominently “Confidential” by the producing party. 4 16. Pursuant to Federal Rule of Evidence 502(d) the production of a privileged or 5 work-product-protected document, whether inadvertent or otherwise, is not a waiver of privilege 6 or protection from discovery in this case or in any other federal or state proceeding. Said 7 protection exists with respect to such document or other documents or communications, written 8 or oral, including, without limitation, other communications referred to in the documents 9 produced. Upon request, such inadvertently produced documents, and all copies thereof, shall be 10 sent to the producing party, sequestered or destroyed within five (5) days of the date of the 11 request, unless such documents have already been filed with the Court. Furthermore, a party’s 12 production shall not be deemed a waiver of any party’s right to object for any reason to the 13 admission of any document or thing into evidence, nor shall the production be deemed an 14 admission of its admissibility or relevance. Nothing in this Paragraph shall prejudice the right of 15 any party to seek discovery or communications, documents and things as to which a claim of 16 attorney-client privilege or attorney work-product has been made. 17 17. The party or parties receiving Confidential Material shall not under any 18 circumstances sell, offer for sale, advertise, or publicize Confidential Material or any information 19 contained therein. 20 18. If any party receives a subpoena from any non-party to this Protective Order 21 seeking production or disclosure of Confidential Material, the subpoenaed party shall give notice, 22 as soon as practicable and in no event more than three (3) business days after receiving the 23 subpoena and at least seven (7) business days before providing materials responsive to the 24 subpoena, to counsel for the designating party, which notice will enclose a copy of the subpoena, 25 such that the designating party may assert its rights, if any, to non-disclosure. 26 19. Any documents produced by a non-party witness in discovery in the Litigation 27 pursuant to subpoena or otherwise may be designated by such non-party as “Confidential” under 28 the terms of this Order, and such designation shall have the same force and effect, and create the STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -8- CASE NO. 4:17-CV-04871-HSG 1 2 same duties, obligations, and remedies as if made by one of the parties hereto. 20. After termination of the Litigation, the provisions of this Protective Order shall 3 continue to be binding, except with respect to those documents and information that become a 4 matter of public record. This Court retains and shall have continuing jurisdiction over the parties 5 and recipients of the Confidential Material for enforcement of the provisions of this Protective 6 Order following termination of the Litigation. 7 21. Within thirty (30) days of termination of the Litigation by dismissal, judgment, or 8 settlement, including any appeals, counsel for the party or parties receiving Confidential Material 9 shall return the Confidential Material, including all copies to counsel for the party or parties 10 disclosing or producing the Confidential Material or alternatively, the parties shall provide 11 certification under oath under penalty of perjury under the laws of the United States of America 12 confirming that counsel have destroyed all documents within their possession, custody or control. 13 The party or parties receiving Confidential Material shall undertake reasonable and good faith 14 efforts to ensure that any person to whom they provided copies of any Confidential Information 15 complies with this obligation. This provision will not apply to court filings or file copies of 16 pleadings, briefs or correspondence or other work product maintained by the parties’ respective 17 counsel in the ordinary course of business. 18 22. This Protective Order shall be binding on any party to this Protective Order or any 19 person having executed the attached Exhibit A. This Protective Order also shall be binding upon 20 the parties and their attorneys, successors, executors, personal representatives, administrators, 21 heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent 22 contractors, or other persons or organizations over which they have control. 23 23. If other parties are added to the Litigation, no Confidential Material previously 24 exchanged, produced, or used herein will be disclosed to such other parties or their counsel except 25 upon their agreeing to be bound by the provisions of this Protective Order. This provision does 26 not prejudice any party’s rights to otherwise object to the production or disclosure of Confidential 27 Material or non-confidential documents or other information to a party added to the Litigation. 28 24. This Protective Order is without prejudice to the right of any party to move the STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL -9- CASE NO. 4:17-CV-04871-HSG 1 Court for an order for good cause shown for protection of Confidential Material sought by or 2 produced through discovery, which protection is different from or in addition to that provided for 3 in this Protective Order, and such right is expressly reserved. 4 IT IS SO STIPULATED. 5 Dated: May 24, 2018 DRINKER BIDDLE & REATH LLP 6 7 By: /s/ Michael J. Stortz Michael J. Stortz Marshall L. Baker E. Paul Cauley, Jr. (pro hac vice) 8 9 Attorneys for Defendant NISSAN NORTH AMERICA, INC. 10 11 Dated: May 24, 2018 BRONSTEIN GEWIRTZ & GROSSMAN 12 13 By: /s/ Shimon Yiftach Shimon Yiftach 14 Gary E. Mason* Jennifer S. Goldstein WHITFIELD BRYSON & MASON, LLP 5101 Wisconsin Ave., NW Suite 305 Washington, D.C. 20016 T: (202) 429-2290 F: (202) 429-2294 gmason@wbmllp.com jgoldstein@wbmllp.com 15 16 17 18 19 20 Lawrence Deutsch* Jeffrey Osterwise* BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 T: (215) 875-3062 F: (215) 875-4604 ldeutsch@bm.net josterwise@bm.net 21 22 23 24 25 Jordan L. Lurie Tarek H. Zohdy Cody R. Padgett CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, California 90067 26 27 28 STIP. PROTECTIVE ORDER RE CONFIDENTIAL DISCOVERY MATERIAL - 10 - CASE NO. 4:17-CV-04871-HSG 1 T (310) 556 T: 6-4811 F (310) 943-0396 F: J Jordan.Lurie e@capstonel lawyers.com m T Tarek.Zohdy y@capstonel lawyers.com m C Cody.Padget tt@capstone elawyers.com m 2 3 4 N Nicholas A. Migliaccio* * J Jason S. Rath hod* M MIGLIACCI & RATH IO HOD, LLP 4 H Street N.E., Ste. 3 412 t 302 W Washington, DC 20002 , T (202) 470 T: 0-3520 F (202 800-2730 F: n nmigliaccio@ @classlawdc c.com j rathod@clas sslawdc.com m 5 6 7 8 9 G Gary S. Grai ifman, Esq.* * J I. Brody, Esq.** Jay , K KANTROW WITZ GOLDH HAMER & GRAIFMA P.C. AN, 7 Chestnu Ridge Roa Suite 200 747 ut ad, 0 C Chestnut Rid New Yo 10977 dge, ork T (845) 356 T: 6-2570 F (845) 356-4335 F: g ggraifman@ @kgglaw.com m j brody@kgg glaw.com 10 11 12 13 14 A Attorneys fo Plaintiffs or 15 * Admitted pro hac vic d ce. * Pro hac v to be file ** vice ed 16 17 Attestation Pursuant to Civil Local Rule 5-1(i) A P l ) 18 19 20 Pursua to Civil Local Rule 5-1(i), I, Mic ant L chael J. Stort hereby att that I ha obtained tz, test ave oncurrence in the filing of this docum from th other sign n o ment he natory to this document. s co 21 I decla under pen are nalty of perju under th laws of the United Sta of Amer that the ury he e ates rica 22 foregoing is tr and corre Execute this 24th d of May, 2018 in San Francisco, California. rue ect. ed day n 23 hael By: /s/ Mich J. Stortz Michae J. Stortz el 24 25 PURSUANT TO STIPULAT TION, IT SO ORDERE O ED. 26 27 ATED: June 15, 2018 e DA Hon. Hay ywood S. Gi illiam, Jr. U.S. Dist trict Judge 28 STIP. PROTEC S CTIVE ORDER RE R CONFIDENTIA DISCOVER MATERIA C AL RY AL -1 11 CA NO. 4:17-C -04871-HSG ASE CV G 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 6 MICHELLE FALK, INDHU JAYAVELU, PATRICIA L. CRUZ, DANIELLE TROTTER, CYNTHIA GARRISON, AND AMANDA MACRI, individually and on behalf of all others similarly situated, 7 Plaintiffs, 5 8 9 Case No. 4:17-cv-04871-HSG STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL DISCOVERY MATERIAL Judge: v. Hon. Haywood S. Gilliam, Jr. NISSAN NORTH AMERICA, INC., 10 Defendant. 11 12 13 14 ACKNOWLEDGMENT OF PROTECTIVE ORDER ENTERED IN THE UNITED STATES DISTRICT COURT – NORTHERN DISTRICT OF CALIFORNIA I hereby acknowledge that I have read the Stipulated Protective Order Regarding 15 Confidential Discovery Material (“Protective Order”) entered in Falk, et al. v. Nissan North 16 America, Inc., Case No. 4:17-cv-04871-HSG, understand its terms, agree to be bound by each of 17 those terms, and agree to submit myself to the jurisdiction of the United States District Court for 18 the Northern District of California for the purposes of enforcing the terms of the Protective Order. 19 Specifically and without limitation upon such terms, I further agree that I will not disseminate, 20 use or disclose any Confidential Material protected by the Protective Order that I have received 21 and/or reviewed in this case to anyone other than the Qualified Persons defined in Paragraph 7 of 22 the Protective Order. 23 Dated: ___ day of ________________, 20___. 24 25 26 27 Signature Printed Name 28 ACKNOWLEDGMENT OF PROTECTIVE ORDER CASE NO. 4:17-CV-04871-HSG

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?