Abaas v. Hewlett Packard Enterprise Company
Filing
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STIPULATED PROTECTIVE ORDER. Signed by District Judge Terrence G. Berg. (AChu)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
RAMY A. ABAAS,
CASE NO. 4:16-CV-12292
Plaintiff,
vs.
HON. TERRENCE G. BERG
MAG. R. STEVEN WHALEN
HEWLETT PACKARD ENTERPRISE
COMPANY,
Defendant.
STIPULATED PROTECTIVE ORDER
WHEREAS, the parties in the above-captioned matter have agreed that these
proceedings may involve the discovery and use of confidential, non-public,
sensitive, or proprietary business, employment, tax, financial, and personally
identifiable information, documents and other materials;
WHEREAS, the parties have agreed to produce such documents only on the
agreement that such “Confidential Information,” meaning current and former
Hewlett-Packard Company (“HP”) or Hewlett Packard Enterprise Company
(“HPE”) employee social security information, dates of birth, personal banking
information, medical information, personnel records and records stating the actual
rates of pay at HP or HPE, and “Trade Secrets,” meaning HP’s or HPE’s corporate
trade secrets, nonpublic research and development data, pricing formulas,
prospective inventory management programs, confidential business information
not generally known to the general public, and customer-related information, will
be disclosed only as provided herein;
WHEREAS, the parties have agreed to stipulate to protect certain
confidential and otherwise protected documents, data (including electronically
stored information), and other information (collectively “Documents”), against
claims of waiver and inadvertent production in the event they are produced during
the course of this litigation whether pursuant to a Court Order, a parties’ discovery
request, or informal production;
WHEREAS, both parties may be required to produce large volumes of
Documents, the parties wish to comply with discovery deadlines and complete
discovery as expeditiously as possible, while preserving and without waiving any
evidentiary protections or privileges applicable to the information contained in the
Documents produced, including as against third parties and other proceedings, and
in addition to their agreement, need the additional protections of a Court Order
under FRE 502 (d) and (e) to do so;
WHEREAS, in order to comply with applicable discovery deadlines, a party
may be required to produce certain categories of Documents that have been subject
to minimal or no attorney review (the “Disclosures”). This Stipulation and Order
is designed to foreclose any arguments that by making such Disclosures, the
disclosure or production of Documents subject to a legally recognized claim of
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privilege, including without limitation the attorney-client privilege, work-product
doctrine, or other applicable privilege:
(a)
was not inadvertent by the Producing Party;
(b)
that the Producing Party did not take reasonable steps to
prevent the disclosure of privileged Documents;
(c)
that the Producing Party did not take reasonable or timely steps
to rectify such Disclosure; and/or
(d)
that such Disclosure acts as a waiver of applicable privileges or
protections associated with such Documents.
WHEREAS, because the purpose of this Stipulation is to protect and
preserve privileged Documents, the parties agree they are bound as follows from
and after the date their counsel have signed it, even if such execution occurs prior
to Court approval.
THEREFORE, the parties seek the entry of an Order, pursuant to Federal
Rule of Civil Procedure 26(c) governing the disclosure of documents and
information
therein
pertaining
to
“Confidential
Information,”
“Personal
Information,” and “Trade Secrets” on the terms set forth herein, as well as an
Order governing the return of inadvertently produced documents and data and
affording them the protections of FRE 502 (d) and (e), on the terms set forth
herein.
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IT IS HEREBY STIPULATED AND AGREED THAT:
1.
The Protective Order shall be entered pursuant to the Federal Rules of
Civil Procedure and FRE 502 (d) and (e).
2.
The Protective Order shall govern all materials deemed to be
“Confidential Information.”
Such Confidential Information shall include the
following:
(a)
(b)
Any documents from the personnel, medical or workers’
compensation file of any current or former employee or
contractor of HP or HPE;
(c)
Any documents relating to the medical or health information of
any of HP’s or HPE’s current or former employees or
contractors;
(d)
3.
Any and all documents referring or related to confidential and
proprietary human resources or business information; financial
records of the parties; compensation of current or former
personnel; policies, procedures or training materials of HP or
HPE; or HP’s or HPE’s organizational structure;
Any portions of depositions (audio or video) where
Confidential Information is disclosed or used as exhibits.
In the case of documents and the information contained therein,
designation of Confidential Information produced shall be made by placing the
following legend on the face of the document and each page so designated
“CONFIDENTIAL” or otherwise expressly identified as confidential. The Parties
will use their best efforts to limit the number of documents designated
Confidential. The party designating the document as Confidential pursuant to this
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Order may waive the confidentiality designation by providing written notice to the
opposing party, or by express oral waiver of such designation during a deposition
or other proceeding on the record.
5.
Except as required by law or executive order, Confidential
Information shall be held in confidence by each qualified recipient to whom it is
disclosed, shall be used only for purposes of this action, shall not be used for any
business purpose, and shall not be disclosed to any person who is not a qualified
recipient. All produced Confidential Information shall be carefully maintained so
as to preclude access by persons who are not qualified recipients.
6.
Qualified recipients shall include only the following:
(a)
(b)
Deposition notaries and staff;
(c)
Persons other than legal counsel who have been retained or
specially employed by a party as an expert witness for purposes
of this lawsuit or to perform investigative work or fact research;
(d)
Deponents during the course of their depositions or potential
witnesses of this case; and
(e)
7.
In-house counsel and law firms for each party and the
secretarial, clerical and paralegal staff of each;
The parties to this litigation, their officers, and professional
employees.
Each counsel shall be responsible for providing notice of the
Protective Order and the terms therein to persons to whom they disclose
“Confidential Information,” as defined by the terms of the Protective Order.
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Persons to whom Confidential Information is shown shall be informed of the
terms of this Order and advised that its breach may be punished or sanctioned as
contempt of the Court. Such deponents may be shown Confidential materials
during their deposition but shall not be permitted to keep copies of said
Confidential materials nor any portion of the deposition transcript reflecting the
Confidential Information.
If either party objects to the claims that information should be deemed
Confidential, that party’s counsel shall inform opposing counsel in writing within
thirty (30) days of receipt of the Confidential materials that the information should
not be so deemed, and the parties shall attempt first to dispose of such disputes in
good faith and on an informal basis. If the parties are unable to resolve their
dispute, they may present a motion to the Court objecting to such status. The
information shall continue to have Confidential status during the pendency of any
such motion.
8.
No copies of Confidential Information shall be made except by or on
behalf of attorneys of record, in-house counsel, or the parties in this action. Any
person making copies of such information shall maintain all copies within their
possession or the possession of those entitled to access to such information under
the Protective Order.
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9.
All information produced in this action, whether deemed Confidential
or not, shall be used only for purposes of this litigation and not for any other
purpose.
10.
Whenever a party wishes to file any writing designated as
Confidential with the Court, the party may either (a) redact any and all information
contained on any page that is marked Confidential before filing said document
with the Court, (b) if the party wishing to file said writing is the party that
originally designated the document as Confidential that party may, at their
discretion, redact only that information that it deems Confidential from any page
that is marked Confidential before filing with the Court, or (c) separately file the
document under seal with the Court. If a party wishes to file a document that has
been marked Confidential with the Court, the party will follow all rules and
practices followed by the Court regarding filing a document under seal, including
filing a motion establishing good cause for the document to be preserved under
seal if necessary, prior to so filing.
11.
The termination of this action shall not relieve the parties and persons
obligated hereunder from their responsibility to maintain the confidentiality of
information designated Confidential pursuant to this Order.
12.
Upon termination of this action by entry of a final judgment (inclusive
of any appeals or petitions for review), the parties may request the return of all
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previously furnished Confidential Information, including any copies thereof, and
each person or party to whom such Confidential Information has been furnished or
produced shall be obligated to return it within thirty (30) days of said request.
Alternatively, a party may satisfy its obligations under Paragraph 12 by verifying
in writing within thirty (30) days of said request that all Confidential Information
furnished by the producing party has been destroy or deleted.
13.
Pursuant to FRE 502 (d) and (e), the parties agree to and the Court
orders protection of privileged and otherwise protected Documents against claims
of waiver (including as against third parties and in other federal and state
proceedings) as follows:
(a)
The disclosure or production of Documents by a Producing
Party subject to a legally recognized claim of privilege,
including, without limitation, the attorney-client privilege and
the work-product doctrine, to a Receiving Party, shall in no way
constitute the voluntary disclosure of such Document.
(b)
The inadvertent disclosure or production of any Document in
this action shall not result in the waiver of any privilege,
evidentiary protection or other protection associated with such
Document as to the Receiving Party or any third parties, and
shall not result in any waiver, including subject matter waiver,
of any kind.
(c)
If, during the course of this litigation, a party determines that
any Document produced by another party is or may reasonably
be subject to a legally recognizable privilege or evidentiary
protection (“Protected Document”):
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(i)
the Receiving Party shall: (A) refrain from reading the
Protected Document any more closely than is necessary
to ascertain that it is privileged or otherwise protected
from disclosure; (B) immediately notify the Producing
Party in writing that it has discovered Documents
believed to be privileged or protected; (C) specifically
identify the Protected Documents by Bates number range
or hash value, and, (D) within ten (10) days of discovery
by the Receiving Party, return, sequester, or destroy all
copies of such Protected Documents, along with any
notes, abstracts or compilations of the content thereof.
To the extent that a Protected Document has been loaded
into a litigation review database under the control of the
Receiving Party, the Receiving Party shall have all
electronic copies of the Protected Document extracted
from the database. Where such Protected Documents
cannot be destroyed or separated, they shall not be
reviewed, disclosed, or otherwise used by the Receiving
Party. Notwithstanding, the Receiving Party is under no
obligation to search or review the Producing Party’s
Documents to identify potentially privileged or work
product Protected Documents.
(ii)
If the Producing Party intends to assert a claim of
privilege or other protection over Documents identified
by the Receiving Party as Protected Documents, the
Producing Party will, within ten (10) days of receiving
the Receiving Party’s written notification described
above, inform the Receiving Party of such intention in
writing and shall provide the Receiving Party with a log
for such Protected Documents that is consistent with the
requirements of the Federal Rules of Civil Procedure,
setting forth the basis for the claim of privilege or other
protection. In the event that any portion of a Protected
Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that
omits the information that the Producing Party believes is
subject to a claim of privilege or other protection.
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(d)
If, during the course of this litigation, a party determines it has
produced a Protected Document:
(i)
(ii)
(e)
The Producing Party may notify the Receiving Party of
such inadvertent production in writing, and demand the
return of such documents. Such notice shall be in
writing, however, it may be delivered orally on the record
at a deposition, promptly followed up in writing. The
Producing Party’s written notice will identify the
Protected Document inadvertently produced by bates
number range or hash value, the privilege or protection
claimed, and the basis for the assertion of the privilege
and shall provide the Receiving Party with a log for such
Protected Documents that is consistent with the
requirements of the Federal Rules of Civil Procedure,
setting forth the basis for the claim of privilege or other
protection. In the event that any portion of the Protected
Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the Document that
omits the information that the Producing Party believes is
subject to a claim of privilege or other protection.
The Receiving Party must, within ten (10) days of
receiving the Producing Party’s written notification
described above, return, sequester, or destroy the
Protected Document and any copies, along with any
notes, abstracts or compilations of the content thereof.
To the extent that a Protected Document has been loaded
into a litigation review database under the control of the
Receiving Party, the Receiving Party shall have all
electronic copies of the Protected Document extracted
from the database.
To the extent that the information contained in a Protected
Document has already been used in or described in other
documents generated or maintained by the Receiving Party
prior to the date of receipt of written notice by the Producing
Party as set forth in paragraphs (c)(ii) and d(i), then the
Receiving Party shall sequester such documents until the claim
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has been resolved. If the Receiving Party disclosed the
Protected Document before being notified of its inadvertent
production, it must take reasonable steps to retrieve it.
(f)
The Receiving Party’s return, sequestering or destruction of
Protected Documents as provided herein will not act as a waiver
of the Requesting Party’s right to move for the production of
the returned, sequestered or destroyed documents on the
grounds that the documents are not, in fact, subject to a viable
claim of privilege or protection. However, the Receiving Party
is prohibited and estopped from arguing that:
(i)
the disclosure or production of the Protected Documents
acts as a waiver of an applicable privilege or evidentiary
protection;
(ii)
the disclosure of the Protected Documents was not
inadvertent;
(iii)
the Producing Party did not take reasonable steps to
prevent the disclosure of the Protected Documents; or
(iv)
the Producing Party failed to take reasonable or timely
steps to rectify the error.
(g)
Either party may submit Protected Documents to the Court
under seal for a determination of the claim of privilege or other
protection. The Producing Party shall preserve the Protected
Documents until such claim is resolved. The Receiving Party
may not use the Protected Documents for any purpose absent
this Court’s Order.
(h)
Upon a determination by the Court that the Protected
Documents are protected by the applicable privilege or
evidentiary protection, and if the Protected Documents have
been sequestered rather than returned or destroyed by the
Receiving Party, the Protected Documents shall be returned or
destroyed within 10 (ten) days of the Court’s order. The Court
may also order the identification by the Receiving Party of
Protected Documents by search terms or other means.
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(i)
(j)
14.
Nothing contained herein is intended to, or shall serve to limit a
party’s right to conduct a review of documents, data (including
electronically stored information) and other information,
including without limitation, metadata, for relevance,
responsiveness or the segregation of privileged or protected
information before such information is produced to another
party.
By operation of the parties’ agreement and Court Order, the
parties are specifically afforded the protections of FRE 502 (d)
and (e).
Subject to the Rules of Evidence, a stamped Confidential document
and other Confidential Information may be offered in evidence at trial or any court
hearing, provided that the proponent of the evidence gives five days’ advance
notice to counsel for the party or other person that designated the information as
Confidential. Any party may move the Court for an order that the evidence be
received in camera or under other conditions to prevent unnecessary disclosure.
The Court will then determine whether the proffered evidence should continue to
be treated as Confidential Information and, if so, what protection, if any, may be
afforded to such information at the trial.
15.
If another Court or an administrative agency subpoenas or orders
production of stamped Confidential documents which a party has obtained under
the terms of this order, such party shall promptly notify the party or other person
who designated the document as Confidential of the pendency of such subpoena or
order.
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16.
Nothing in this Order shall be construed as an admission as to the
relevance, authenticity, foundation, or admissibility of any document, material,
transcript, or other information.
17.
Nothing in the Protective Order shall be deemed to preclude any party
from seeking and obtaining, on an appropriate showing, a modification of this
Order.
18.
Once executed by all parties, the Stipulation shall be by treated by the
Parties as an Order of Court until it is formally approved by the Court.
SO ORDERED.
/s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated:
April 13, 2017
Flint, Michigan
/s/ Joseph A. Golden (w/consent)
BURGESS SHARP & GOLDEN
PLLC
43260 Garfield, Suite 280
Clinton Township, MI 48038
586.226.2627
P14105
joseph@bsglawfirm.com
/s/ Michael A. Chichester, Jr.
LITTLER MENDELSON, P.C.
200 Renaissance Center
Suite 3110
Detroit, MI 48243
313.202.3254
mchichester@littler.com
(P70823)
Attorneys for Plaintiff
Attorneys for Defendant
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