Raynes et al v. Ghost Horse Vineyards, LLC et al

Filing 47

STIPULATION AND ORDER re 46 Proposed Order filed by Jen Raynes, Jen Raynes Studio. Signed by Magistrate Judge Howard R. Lloyd on 2/11/2010. (hrllc1, COURT STAFF) (Filed on 2/11/2010)

** E-filed February 11, 2010 **
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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Jen Raynes, et al.,
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No. CV09 3929 JF
STIPULATED PROTECTIVE ORDER

PlaintifT
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v.

AS AMENDED BY THE COURT

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14 Ghost Horse Vineyards, LLC, et a
Defendant.
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17 1. PURPOSES AND LIMITATIONS
18 Disclosure and discovery activity in this action are likely to involve production of confdential,
19 proprietary, or private information for which special protection from public disclosure and from use

20 for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties
21 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
22 parties acknowledge that this Order does not confer blanket protections on all disclosures or
23 responses to discovery

and that the protection it affords extends only to the limted information or

24 items that are entitled under the applicable legal principles to treatment as confidentiaL. The parties

25 further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates
26 no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the

27 procedures that must be followed and reflects the standards that wil be applied when a party seeks
28 permission from the court to file material under seaL.

2. DEFINITIONS
2

2.1

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

3 employees, consultants, retained experts, and outside counsel (and their support staff.
4

2.2

Disclosure or Discovery Material: all items or infornmtion, regardless of

the

5 medium or manner generated, stored, or maintained (including, among other thigs, testimony,
6 transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery

7 in this matter.
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2.3

"Confdential" Information or Items: information (regardless of how generated,

9 stored or maintained) or tangible things that qualify for protection under standards developed under

10 F.R.Civ.P.26(c).
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2.4

"Highly Confidential - Attorneys' Eyes Only" Information or Items:

12 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or non-

13 party would create a substantial risk of serious injury that could not be avoided by less restrictive
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mean.
2.5

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

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Producing Party.
2.6
Material in this action.
2.7. Designating Party: a Party or non-party that designates inormation or items

Producing Party: a Party or non-party that produces Disclosure or Discovery

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20 that it produces in disclosures or in responses to discovery as "Confidential" or "Highly Confidential

21 Attorneys' Eyes Only."
22

2.8

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

23 "Confidential" or as "Highly Confidential - Attorneys' Eyes Only."
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2.9. Outside Counsel: attorneys who are not employees ofa Party but who are

25 retained to represent or advise a Party in this action.
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2.1 0 House Counsel: attorneys who are employees of a Party.
2. 11 Counsel (without qualifer): Outside Counsel and House Counsel (as well as

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28 their support staffs).

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1 2.12 Expert: a person with speeialied knowledge or experienee in a matter
2 pertinent to the litigation who has been retained by a Pary or its counsel to serve as an expert witness
3 or as a consultant in this action and who is not a past or a cun"ent employee of a Party or of a
4 competitor ofa Party's and who, at the time of

retention, is not anticipated to become an employee of

5 a Party or a competitor of a Party's. This definition includes a professional jur or trial consultant

6 retained in connection with this litigation.

7 2.13 Professional Vendors: persons or entities that provide litigation support
8 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;

9 organizing, storing, retiieving data in any form or medium; etc.) and their employees and

10 subcontractors.
11

12 3. SCOPE
13 The protections confelTed by this Stipulation and Order cover not only Protected Material (as
14 defined above), but also any information copied or extracted therefrom, as well as all copies,
15 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by

16 parties or counsel to or in court or in other settings that might reveal Protected MateriaL.
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4. DURATION

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Even after the termination ofthis litigation, the confidentiality obligations imposed by this Order
shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise
directs. For a period of six months after the final termination of this action, this court

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will retain jurisdiction to enforce the terms of this protective order.

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23 5. DESIGNATING PROTECTED MATERIAL
24 5.1 Exercise of

Restraint and Care in Designating Material for Protection. Each Party

25 or non-party that designates information or itell for protection under this Order must take care to
26 limt any such designation to specifc material that qualifies under the appropriate standards. A
27 Designating Party must take care to designate for protection only those parts of

material, documents,
the material,

28 items, or oral or written communications that qualifY - so that other portions of

3

i documents, items, or communications for which proteetion is not watTanted are not swept
2 unjustifably within the ambit of this Order.
3 Mass, indiscrimnate, or routinied designations are prohibited. Designations that are

4 shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to
5 uiiecessarily encumber or retard the case development process, or to impose unnecessary expenses

6 and burdens on other parties), expose the Designating Party to sanctions.
7 Ifit comes to a Party's or a non-party's attention that inormation or items that it

8 designated for protection do not qualify for protection at all, or do not qualify for the level of

9 protection initially asserted, that Party or non-party must promptly notify all other parties that it is
10 withdrawing the mistaken designation.
11 5.2 Manner and Timig of

Designations. Except as otherwise provided in this Order

12 (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material
13 that qualifies for protection under this Order must be clearly so designated before the material is

14 disclosed or produced.

15 Designation in conformity with this Order requires:
16 (a) for information in documentary form (apart from transcripts of depositions
i 7 or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL"

18 or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" at the top of each page that
19 contains protected materiaL. If only a portion or portions of

the material on a page qualifies for

20 protection, the Producing Party also must clearly identify the protected portiones) (e.g., by makig
21 appropriate markings in the margins) and must specify, for eaeh portion, the level of protection being

22 asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
23 ONLY").

24 A Party or non-party that makes original documents or materials available for
25 inspection need not designte them for protection until after the inspecting Party has indicated which

26 nmterial it would lie copied and produced. During the inspection and before the designation, all of
27 the materialnmde available for inspection shall be deemed "HIGHLY CONFIDENTIAL -

28 ATTORNEYS' EYES ONLY." Afer the inspecting Party has identifed the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,
2 qualifY for protection under this Order, then, before producing the specified documents, the

3 Producing Party must affx the appropriate legend ("CONFIDENTIAL" or "HIGHLY

4 CONFIDENTIAL - ATTORNEYS' EYES ONLY") at the top of each page that contains Protected
5 MateriaL. If only a portion or portions ofthe material on a page qualifies for protection, the
6 Producing Party also must clearly identifY the protected portiones) (e.g., by makig appropriate
7 markings in the margin) and must specify, for each portion, the level of

protection being asserted

8 (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY").

9 (b) for testimony given in deposition or in other pretrial or trial proceedings,
10 that the Party or non-party offeiing or sponsoring the testimony identifY on the record, before the
11 close of

the deposition, hearing, or other proceeding, all protected testimony, and fuher specifY any

12 portions of

the testimony that qualifY as "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES

13 ONL Y" When it is impractical to identifY separately each portion oftestimony that is entitled to
14 protection, and when it appears that substantial portions of

the testimony may qualifY for protection,

15 the Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before 16 the deposition or proceeding is concluded) a right to have up to 20 days to identifY the specific
17 portions of the testimony as to which protection is sought and to specifY the level of

protection being

18 asserted ("CONFIDENTIAL" or ''HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY").
19 Only those portions ofthe testimony that are appropriately designated for protection witin the 20
20 days shall be covered by the provisions of

this Stipulated Protective Order.

21 Transeript pages containing Protected Material must be separately bound by
22 the court reporter, who must affix to the top of eaeh such page the legend "CONFIDENTIA" or
23 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," as instructed by the Party or non24 party offering or sponsoring the witness or presenting the testimony. .

25 (c) for informtion produced in some form other than documentary, and for
26 any other tangible items, that the Producing Party affx in a prominent place on the exterior of

the

27 container or contaiers in which the information or item is stored the legend "CONFIDENTIAL" or
28 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" If only portions of

the information

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or item warrant proteetion, the Producing Party, to the extent practicable, shall identifY the proteeted
2 portions, specifYing whether they qualif as "Confidential" or as "Highly Confidential- Attorneys'

3 Eyes Only."
4 5.3 Inadvertent Failures to Designate. If

timely corrected, an inadvertent failure to

5 designate qualified information or items as "Confidential" or "Highly Confidential- Attorneys' Eyes

6 Only" does not, standing alone, waive the Designating Party's right to secure protection under this
7 Order for such materiaL. If

material is appropriately designated as "Confdential" or "Highly

8 Confdential- Attorneys' Eyes Only" after the material was intially produced, the Receiving Party,
9 on timely notification of

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

10 treated in accordance with the provisions ofthis Order.
11

12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

13 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party's
l4 confidentiality designation is necessary to avoid foreseeable substantial unfuirness, unnecessary
15 economic burdens, or a later significant disruption or delay of

the litigation, a Party does not waive its

16 right to challenge a confidentiality designation by electing not to mount a challenge promptly after the
17 origial designation is disclosed.

18 6.2 Meet and Confer. A Party that elects to intiate a challenge to a Designating
19 Party's confidentiality designation must do so in good faith and must begin the process by conferring

20 directly (in voice to voice dialogue; other forms of communication are not suffcient) with counsel for
21 the Designating Party. In eonfcrring, the challenging Party must explain the basis for its belief that
22 the confdentiality designation was not proper and must give the Designating Party an opportunity to

23 review the designated material, to reconsider the circumstances, and, ifno change in designation is

24 offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next

25 stage of the challenge process only if it has engaged in this meet and confer process fist.
26

27 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality
28 designation after considering the justification offered by the Designating Party may fie and serve a

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motion under Civil Loeal Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that

2 identifes the challenged material and sets forth in detail the basis for the challenge. Eaeh sueh motion
3 must be accompanied by a competent declaration that affirms that the movant has complied with the

4 meet and confer requirements imposed in the preceding paragraph and that sets forth with specifcity
5 the justification for the confidentiality designation that was given by the Designating Paiiy in the meet

6 and confer dialogue.

7 The burden ofpersuasion in any such challenge proceeding shall be on the Designating
8 Party. Until the court rules on the challenge, all parties shall continue to afford the material in

9 question the level of protection to which it is entitled under the Producing Party's designation.
10

11 7. ACCESS TO AND USE OF PROTECTED MATERIAL

12 7.1 Basic Principles. A Reeeiving Party may use Proteeted Material that is disclosed
13 or produced by another Party or by a non-party in connection with this case only for prosecuting,

14 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
15 the categories of persons and under the conditions described in this Order. When the litigation has
16 been terminated, a Receiving Party must comply with the provisions of section

11, below (FINAL

17 DISPOSITION).

18 Protected Material must be stored and maintaied by a Receiving Party at a location
19 and in a secure manner that ensures that access is lited to the persons authorized under this Order.
20 7.2 Disclosure of

"CONFIDENTIAL" Information or Items. Unless otherwise

21 ordered by the cour or permitted in writing by the Designating Party, a Receiving Party may disclose
22 any information or item designated CONFIDENTIAL only to:
23 (a) the Receiving Paity's Outside Counsel of

record in this action, as well as

24 employees of said Counsel to whom it is reasonably necessary to disclose the inormation for this

25 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached
26 hereto as Exhibit A;
27 (b) the offcers, directors, and employees (including House Counsel) of

the

28 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed

7

the "Agreement to Be Bound by Protective Order" (Exhibit A);
2 (c) experts (as defied in this Order) of

the Reeeiving Party to whom

3 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be

4 Bound by Protective Order" (Exhibit A);
5

(d) the Court and its personnel;
(e) court reporters, their staffs, and professional vendors to whom disclosure is

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7 reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by
8 Protective Order" (Exhibit A);

9 (f) during their depositions, witnesses in the action to whom disclosure is
10 reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order"

11 (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal
12 Protected Material must be separately bound by the court reporter and may not be disclosed to
13 anyone except as permitted under this Stipulated Protective Order.
14 (g) the author of the document or the original source of

the information.

15 7.3 Disclosure of

"HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY"

16 Information or Items. Unless otherwise ordered by the court or permitted in writing by the
17 Designating Party, a Receiving Party may disclose any infoimation or item designated "HIGHLY

18 CONFIDENTIA - ATTORNEYS' EYES ONLY" only to:
,

1 9 (a) the Receiving Party's Outside Counsel of record in this action, as well as

20 employees of said Counsel to whom it is reasonably necessary to disclose the inormation for this

21 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached
22 hereto as Exhibit A;
23

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13

14 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
15 LITIGATION.

16 If a Receiving Party is served with a subpoena or an order issued in other litigation
17 that would compel disclosure of any information or items designated in this action as

18 "CONFIDENTIAL" or "HI GHL Y CONFIDENTIAL - ATTORNEYS' EYES ONLY," the
19 Receiving Party must so notifY the Designating Party, in writing (by fax, if

possible) immediately and

20 in no event more than three court days after receiving the subpoena or order. Such notification must

21 include a eopy of the subpoena or court order.

22 The Receiving Party also must immediately inform in wrting the Party who eaused the
23 subpoena or order to issue in the other litigation that some or all the material covered by the
24 subpoena or order is the subject of

this Protective Order. In addition, the Receiving Party must

25 deliver a copy of

this Stipulated Protective Order promptly to the Party in the other action that

26 caused the subpoena or order to issue.

27 The purpose of imposing these duties is to alert thc interested parties to the existence
28 of

this Protective Order and to afford the Designating Party in this case an opportunity to try to

10

protect its eonfidentiality interests in the court from which the subpoena or order issued. The
2 Designating Party shall bear the burdens and the expenses of seekig protection in that court of

its

3 confdential material- and nothig in these provisions should be construed as authorizing or
4 encouraging a Receiving Party in this action to disobey

a lawful directive :f:om another court.

5

6 9. UNAUTHORIZED DISCLOSUR OF PROTECTED MATERIAL
7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
8 Material to any person or in any circumstance not authorized under this Stipulated Protective Order,

9 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
10 disclosures, (b) use its best efforts to retrieve all copies of

the Protected Material, (c) inform the

11 person or persons to whom unauthorized disclosures were made of all the term of this Order, and (d)
12 request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that

13 is attached hereto as Exhibit A.
14

15 10. FILING PROTECTED MATERIAL. Without written pennission from the Designating
16 Party or a court order secured after appropriate notice to all interested persons, a Party may no t file
17 in the public record in this action any Protected MateriaL. A Party that seeks to file imder seal any

18 Protected Material must comply with Civil Local Rule 79-5.
19

20 11. FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the Producing
21 Party, within sixty days after the fial termiation of

this action, eaeh Receiving Party must return all

22 Proteeted Material to the Producing Party. As used in this subdivision, "all Protected Material"
23 includes all copies, abstracts, compilations, summaries or any other form of

reproducing or capturing

24 any ofthe Protected MateriaL. With permission in writing from the Designating Party, the Receiving

25 Party may destroy some or all of the Protected Material instead of returning it. Whether the
26 Protected Material is returned or destroyed, the Receiving Party must submit a written certifcation to
27 the Producing Party (and, if

not the same person or entity, to the Designating Party) by the sixty day

28 deadline that identifies (by category, where appropriate) all the Protected Material that was retun1ed

i1

or destroyed and that affirms that the Receiving Party has not retained any copies, abstracts,

2 compilations, summaries or other forms of reproducing or capturing any of the Protected MateriaL.

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

4 motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such
5 materials contain Protected MateriaL. Any such archival copies that contain or constitute Protected

6 Material remain subject to this Protective Order as set forth in Section 4 (DURATION), above.
7

8 12. MISCELLANEOUS
9 12.1 Right to Fuither Relief Nothg in this Order abridges the right of any person
10 to seek its modification by the Court in the future.
11 12.2 Right to Assert Other Objeetions. By stipulating to the entry of

this Protective

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

13 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
14 Party waives any right to object on any ground to use in evidence 0 f any of the material covered by

15 this Protective Order.
16
17

18 DATED: :Z-1' -/0
19

20 DATED:
21

22 PURSUANT TO STIPULATION, IT IS SO ORDERED.

23 DATED:

February 11, 2010

24 United States District/Magistrate Judge
25

HOWARD R. LLOYD

26
27 28

12

EXHIBIT A
2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3

4 I, (print or type full name), of (print
5 or type full address), declare under penalty of

perjur that I have read in its entirety and understand

6 the Stipulated Protective Order that was issued by the United States District Court for the Northern
7 DistrictofCalifomiaon in the case

of ,_', _ _ ..._

8 . ~_~.,~~_~___._ "~=~.-"__~,~_.__= I agree to comply with and to be bound by all
9 the terms of

this Stipulated Protective Order and I understand and acknowledge that failure to so

10 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise
11 that I wil

not disclose in any manner any information or item that is subject to this Stipulated

12 Protective Order to any person or entity except in strict compliance with the provisions ofthis Order.
13 I further agree to submit to the jurisdiction ofthe United States District Court for the Northern

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

15 if such enforcement proceedigs occur after termiation of this action.

appoint (print or type full name) of 17 (print or type full address and telephone number)
16 I hereby

18 as my California agent for service of process in connection with this action or any proceedings related

19 to enforcement of this Stipulated Protective Order.
20
21 Date:
22 City and State where sworn and signed:

23 Printed name:

24

(printed name)

Signature:
25

(signature)

26
27

28