UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 20, 2010
SUSAN NOVAK, AN INDIVIDUAL AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED AND THE GENERAL PUBLIC, PLAINTIFF,
THE BOEING COMPANY, A DELAWARE CORPORATION AND DOES 1 THROUGH 100, INCLUSIVE. DEFENDANTS.
The opinion of the court was delivered by: The Honorable Ralph Zarefsky United States Magistrate Judge
JOINT STIPULATION GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS; [PROPOSED] ORDER
WHEREAS, in the course of this action, disclosure may be sought or made of information which the parties or a third-party regard as being confidential, private, a trade secret, or proprietary in nature; and
WHEREAS, the parties desire to establish a mechanism to protect and regulate the disclosure and use of such confidential, private, trade secret, or proprietary information in this action.
IT IS HEREBY STIPULATED by and between Plaintiffs SUSAN NOVAK, on behalf of herself and all putative class members she purports to represent ("Plaintiff"), and Defendant THE BOEING COMPANY ("Defendant"), by and through their attorneys of record, that the following should govern the disclosure of confidential, private, trade secret, and proprietary information in this action during the course of discovery, and respectfully jointly request the Court to enter this Proposed Order Governing the Designation and Handling of Confidential Materials (the "Order").
For purposes of this Stipulation, the following definitions shall apply:
a. "Party" means every party to this action, as well as any third-party, and every director, officer, current or former employee and agent of every party or third-party.
b. "CONFIDENTIAL" is a designation that any Party may apply to information which it believes in good faith to constitute, contain, reveal or reflect private, confidential or privileged information protected by applicable California and/or federal law, such as employee medical records, compensation, salary, personnel records, personal contact information, trade secrets, and other confidential research, development, commercial or personal information relating to its business or which was disclosed to it in confidence by any third-party, the disclosure of which to the general public or the adverse party could adversely prejudice that Party.
c. "Confidential Information" means any information which is properly designated "CONFIDENTIAL" as described above.
d. Exceptions to confidentiality status. Information will not be deemed "CONFIDENTIAL," and the Parties shall use reasonable efforts to ensure that information is not designated as such, if the content or substance thereof:
1. Is at the time of disclosure, or subsequently becomes through no wrongful act or failure to act on the part of the receiving Party, generally available to the relevant public; or
2. Is disclosed to the receiving Party by a third-party without breach of an obligation of confidence.
e. "Designating Party" means any Party disclosing during this action information which is designated "CONFIDENTIAL" by said Party.
f. "Counsel of Record" includes the following law firms and any law firms retained by a third-party in connection with disclosure of Confidential Information hereunder, including all attorneys, paralegals, professionals, clerks, and secretaries employed by such law firms:
1. PAYNE & FEARS LLP
2. MAKAREM & ASSOCIATES APLC
II. TERMS OF STIPULATION GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS
1. Materials Subject to Designation. All originals or copies, of transcripts of depositions (regardless of medium of transcription), exhibits, answers to interrogatories and requests for admissions, and all documents, materials, tangible things and information obtained through discovery by inspection of files or facilities, production of documents and things, or otherwise obtained pursuant to this action, may be designated by the Party producing, providing, or disclosing these materials in conformity with the definitions set forth above.
2. Manner of Designating Confidential Information.
(a) A Party shall designate documents containing Confidential Information by placing a legend on each page of any document that the Party wishes to protect against disclosure or use, or in the case of computer disks or tape, on the cover or container of the disk or tape. This legend shall state "CONFIDENTIAL" and documents so designated shall be treated according to their designation, as set forth in Paragraph 3 below. A designation of Confidential Information as to anything for which inspection or sampling is allowed shall be made by placing a "CONFIDENTIAL" legend on the thing or container within which it is stored, or by some other means of designation agreed upon by the Parties. With the exception of Section 2(b) immediately below, all documents and things shall be marked prior to the provision of physical copies of these documents and things to counsel for the receiving Party.
(b) A Party may, within ten (10) days after this Stipulation is fully executed, designate as "CONFIDENTIAL" any previously produced documents in discovery within the last sixty (60)(days) that contains information listed in definition of "CONFIDENTIAL" herein, and will provide written notice of such designations to every other Party.
3. Treatment of Confidential Information.
a. "CONFIDENTIAL" Designation. Information designated as "CONFIDENTIAL," and all information derived from the information so designated (excluding such information as is derived lawfully from an independent source without reference to or reliance on the designated information) shall not be disclosed, given, shown, made available or communicated in any way to any person or entity other than: Counsel of Record; Plaintiffs and Defendants; the Designating Party as per Paragraph 12 below; authors and recipients, as per Paragraph 13 below; deponents and designated persons testifying during the course of depositions taken in the action as provided by Paragraph 8 below; the persons to whom disclosure is permitted under the terms of Paragraphs 4, 5 and 9 below; and the officers, directors, attorneys, and managers of the Parties who are working directly on this litigation, to whom it is necessary that the information be disclosed for the purposes of this litigation, and who have executed the Confidentiality Agreement in the form attached to this Stipulation as Exhibit "A." Information designated as "CONFIDENTIAL" and all information derived from the information so designated (excluding such information as is derived lawfully from an independent source without reference to or reliance on the designated information) shall be used only for the purposes of this litigation and shall not be used for any other purpose whatsoever.
4. Outside Experts and Retained Consultants. Information designated as "CONFIDENTIAL" may also be shown to outside experts or consultants, together with their clerical personnel, who have been retained by a Party in connection with preparation for trial or for trial in this action.
5. Request for Additional Disclosure. If any Counsel of Record desires to give, show, make available or communicate to any person apart from those permitted under Paragraphs 3 and 4 above any information designated as "CONFIDENTIAL" that counsel shall first obtain the written consent of the Designating Party through such Party's Counsel of Record or, if written consent is withheld, a court order authorizing such disclosure. Each person to whom the Confidential Information is to be given, shown, made available or communicated pursuant to this paragraph must first execute a written Confidentiality Agreement, in the form attached to this Order as Exhibit "A," a copy of which shall be sent to the Designating Party prior to any disclosure. Only after all of the foregoing conditions have been fully satisfied may the Confidential Information be given, shown, made available or communicated to any person other than those permitted under Paragraphs 3 and 4 above. Nothing contained herein shall be construed to restrict or limit the rights of the Parties in another action to conduct discovery or the subpoena power of another court.
6. Record of Disclosure. Any Counsel of Record making any disclosure to any person required to sign a Confidentiality Agreement under the terms of this Stipulation shall retain the original of the Confidentiality Agreement signed by such person.
7. Maintenance of Designated Information. Counsel of Record who have received Confidential Information that is provided pursuant to this Stipulation shall maintain such Confidential Information in a secure and safe area and shall exercise due and proper care with respect to the storage, custody and use of all Confidential Information, so as to prevent the unauthorized or inadvertent disclosure of any of it.
8. Manner of Designating Confidential Information At Depositions. Should Counsel of Record for any party introduce or use any Confidential Information in a deposition, or believe that any question to a witness at deposition upon oral examination will disclose Confidential Information, or that answers to any question will require such disclosure, or if documents designated as containing Confidential Information will be used as exhibits during examination, Counsel of Record introducing or using such Confidential Information shall have a duty to identify on the record that he or she is asking questions concerning designated Confidential Information or is utilizing documents containing Confidential Information, and any related testimony shall be equally subject to this Stipulation Governing the Designation and Handling of Confidential Materials, and subject to disclosure only under the terms and provisions set forth in this Stipulation. Unless otherwise ordered by this Court, the Designating Party or the receiving Party shall have the right to have all persons, except the person testifying in the deposition and his or her counsel, Counsel of Record for the Parties, the court reporter, and such other persons as are permitted under the terms of this Order Stipulation to have access to Confidential Information, excluded from a deposition during the taking of the testimony designated pursuant to this Order.
9. Court Reporters. Any court reporter shall be entitled to hear Confidential Information and receive and handle exhibits containing Confidential Information as necessary or appropriate for the performance of his or her duties.
10. Boeing Employees' Confidential Private Personnel and Employment Records. Any Boeing employee whose own personnel or employment records are produced (either voluntarily or through the employee's authorization) or ordered produced by the Court, in discovery in this litigation, can be shown a copy of their own personnel or employment records designated as "CONFIDENTIAL" that relates solely to themselves (but not other Boeing employees) without having to sign the Confidentiality Agreement. This provision is not to be construed as an acknowledgement or concession by Boeing that any certain individual employee or group of its employees constitute an actual or putative class in this litigation or is "similarly situated" to the named Plaintiff, and further, does not waive Boeing's right to challenge or object to the discovery of such information in the first instance on any legitimate grounds or bases, including, but not limited to, relevancy, not likely to lead to the discovery of admissible evidence, overbroad or burdensome, or violations of privacy rights.
11. Filing Documents with the Court. All information designated as "CONFIDENTIAL" that is filed with the Court, and any pleadings, motions or other papers filed with the Court disclosing such "CONFIDENTIAL" materials, shall be filed with and kept by the Clerk of the Court in sealed envelopes or other appropriately sealed containers which the filing Party shall have marked with an appropriate legend such as "Contains Confidential Information Or Materials Subject To Protective Order - Filed Under Seal," and a statement in substantially the following form:
"This envelope contains documents or things subject to the Protective Order in this action. It is not to be opened nor the contents displayed, revealed, or made public, except by the written order of the Court."
If anything filed with the Court contains information designated as "CONFIDENTIAL," then the entire document, deposition transcript, information or thing shall be filed under seal. The Parties agree to endeavor to minimize the number of documents filed with the Court under seal.
Subject to the provisions contained herein that no Party shall use any information designated as "CONFIDENTIAL" for purposes other than this ACTION, the terms of this stipulation shall not otherwise restrict any Party's use of any information designated as "CONFIDENTIAL" at trial. The use of information designated as "CONFIDENTIAL" at trial shall be subject to and governed by all appropriate objections by the parties and/or orders entered by the Court regarding such use. Nothing herein shall prejudice the Parties' rights to seek such orders in advance of and/or during trial.
All information designated as "CONFIDENTIAL" submitted to the Court for consideration in relation to a motion shall be lodged under seal, in compliance with the Federal Rules of Civil Procedure and the Local Rules. Concurrent with the lodging of such documents under seal, the Party so lodging shall also lodge a proposed order, and file a memorandum of law in support of such order, granting the lodging Party the right to file the documents under seal.
12. No Effects on Party's Own Use. Nothing contained in this Stipulation shall affect any right of a Party to disclose or use any information designated and produced by it as "CONFIDENTIAL" or the right of any party to show such information to officers, directors, employees, agents, partners, or attorneys of the Designating Party.
13. No Effect on Disclosure to Author or Addressees. Nothing contained in this Stipulation shall prevent, limit or otherwise restrict any Party from disclosing any information designated "CONFIDENTIAL" to any author or prior recipient of a document containing the information.
14. Legal Effect of Confidentiality Designations. Neither the designation by a Party of any document, material or information as "CONFIDENTIAL" nor treatment by a Party of any such document, material or information in conformity with such designation shall constitute or be construed in any way as an admission or agreement by any non-Designating Party that the designated disclosure constitutes or contains any private, trade secret, propriety information or Confidential Information.
15. Final Disposition of Action. Upon the final disposition of this action, each Counsel of Record shall upon request: (a) promptly return to Counsel of Record for the Designating Party, at the expense of Designating Party all documents and things designated "CONFIDENTIAL" and all copies made of such documents and things, including all electronic copies of documents stored on databases maintained for discovery purposes; and (b) promptly destroy or see to the destruction of all writings related to Confidential Information, including but not limited to notes, analyses, memoranda or reports provided to or by any other persons, and certify to the Designating Party that such destruction has been done. As an exception to the above, Counsel of Record may retain a single file copy of any document filed with the Court, any written discovery response, a transcript of any deposition testimony, together with all exhibits to that transcript, and a database containing electronic copies of documents designated "CONFIDENTIAL." The copy of these retained documents shall continue to be treated as "CONFIDENTIAL" and Counsel of Record shall immediately notify opposing Counsel of Record of any attempt by third parties to inspect or copy said documents.
16. Motion for Relief from Designation. If, at any time, after a Party receives information designated "CONFIDENTIAL" by another Party, it appears to the receiving Party that any such information is not entitled to the "CONFIDENTIAL" designation, such receiving Party shall first notify Counsel of Record for the Designating Party in writing, providing its reasons for challenging the designation. A receiving Party may make such objection at any time during this litigation. If, after five (5) calendar days after such notice is given, the Parties have been unable to reach an agreement as to whether the information should be treated as "CONFIDENTIAL," the Designating Party will have to notify the receiving Party as to whether the Designating Party intends to bring a motion with the Court, pursuant to the procedures set forth in Local Rule 37, to have the Court determine whether such designated information is entitled to an appropriate protective order that would limit the use or manner of dissemination of the information designated as "CONFIDENTIAL." The Designating Party will then have seven (7) calendar days to provide the receiving party with its portion of the joint stipulation required by Local Rule 37-2.2 The Designating Party shall bear the burden of proving that any designated material contains information entitled to the CONFIDENTIAL" designation under the provisions of this Stipulation. Until such motion has been decided, the information shall be treated as designated. If the Designating Party does not file a motion after two (2) court days after the Receiving Party has presented the Designating Party with its portion of the Joint Stipulation required under Local Rule 37-.2.2, the information at issue shall no longer be protected by this Stipulation or any subsequently entered Order thereon.
17. Survival of Terms. Absent written modification by the Parties or further order of the Court, the provisions of this Stipulation that restrict the disclosure and use of Confidential Information shall survive the final disposition of this action and continue to be binding on all persons subject to the terms of this Stipulation. However, no modification by the Parties shall have the force or effect of a Court Order unless the Court approves the modification.
18. Effect on Discovery. This Order shall not preclude or limit the right of any Party to object to or resist discovery on any ground which would otherwise be available.
19. Order Binding When Signed. This Stipulation shall be binding on the Parties when signed regardless of whether or when the Court enters an Order thereon.
20. Violation of Stipulation/Court Order. In the event anyone shall violate or threaten to violate any term of this Stipulation or subsequent Court Order entered thereon, the Parties agree that the aggrieved Party may immediately apply to the Court in this action to seek relief against any such person violating or threatening to violate any of the terms of this Stipulation or any subsequent court Order entered thereon. The Parties and any other person subject to the terms of this Stipulation agree that this Court has jurisdiction of such person or Party, for the purpose of enforcing this Stipulation.
IT IS SO STIPULATED AND AGREED.
DATED: December 15, 2010 PAYNE & FEARS LLP By:/s/Daniel F. Fears DANIEL F. FEARS SEAN O'BRIEN Attorneys for Defendant THE BOEING COMPANY DATED: December 15, 2010 MAKAREM & ASSOCIATES APLC By:/s/Marnie B. Folinsky RONALD W. MAKAREM MARNI B. FOLINSKY Attorneys for Plaintiff SUSAN NOVAK
ACKNOWLEDGMENT OF RECEIPT OF ORDER GOVERNING THE DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS AND AGREEMENT TO BE BOUND THEREBY
I hereby acknowledge receipt of and that I have read a copy of the Stipulation Governing the Designation and Handling of Confidential Materials (the "Order"), which I understand was made on 2010, in the action entitled Susan Novak v. The Boeing Company, United States District Court for the Central District of California, Case No. SACV09-1011 CJC(ANx). I agree that I will be bound by the provisions of the Stipulation and nay subsequently entered Court Order thereon with respect to any Confidential Information provided to me under the terms thereof. I agree that, if I receive any Confidential Information, I will not make any copies thereof nor disclose such Confidential Information except as permitted by the Order. I further understand that if I fail to comply with the terms of the Order, I may be subject to sanctions by the Court, and I hereby consent to personal jurisdiction in the State of California with respect to any matter relating to or arising out of the Stipulation and/or subsequent court Order.
Executed this day of 201_ at California.
IT IS ORDERED THAT the terms governing the designation and handling of confidential materials as described herein above shall be entered as the Order of the Court, and shall be binding upon the parties and signatories to Exhibit "A."
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