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Margie Daniel, Robert Mccabe v. Ford Motor Company


March 16, 2012



Discovery in this action is likely to involve production of material that the producing party 24 contends is confidential, proprietary, or private information for which special protection from public 25 disclosure and from use for any purpose other than prosecuting this litigation would be warranted, 26 including but not limited to (1) engineering documents, including design drawings and 27 specifications, (2) test documents and testing procedures; (3) manufacturing specifications and 28 procedures; (4) internal business or financial information; and (5) any other similar proprietary, confidential, or private information, including but not limited to trade secrets. A protective order is 2 necessary for information in categories (1), (2), (3) and (4) because the producing party operates in 3 a highly competitive, global marketplace and is dependent upon its technical and business know-4 how to achieve and maintain a competitive advantage. Disclosure of this information could result 5 in serious and immediate competitive and economic harm. Information in category (5) may include 6 such things as personally identifying information, trade secrets not falling within one of the other 7 categories, and competitive intelligence, and must be protected for personal privacy or competitive 8 protection reasons. Because information produced in this case may be shared with consulting and 9 testifying experts, a private agreement between the parties would not suffice, and a court order is 10 required. 11

Therefore, to expedite the flow of discovery material, facilitate the prompt resolution of 12 disputes over confidentiality, adequately protect material entitled to be kept confidential, and ensure 13 that protection is afforded only to material so entitled, and based on good cause, it is, pursuant to the 14 Court's authority under Federal Rule of Civil Procedure ("FRCP") 26(c)(1) and Local Rule 141.1, 15 and with the consent of the parties, hereby ORDERED: 16

1. Scope of Order.

This Order is intended to facilitate the Parties' production of 17 information and documents as part of voluntary disclosure and in response to discovery requests. 18 Nothing in this Order is to be construed to expand or limit the Parties' discovery obligations. This 19 Order covers the production and use of all Protected Documents in this action that constitute, 20 contain or disclose, in whole or in part, information which the Designating Party designates as 21 "Confidential." This Order is also intended to apply to any documents produced to the Parties by a 22 non-party in connection with a subpoena. 23

2. General Definitions.

For purposes of this Order, the following terms have the 24 following meanings: 25

a. Pursuant to FRCP 26(c)(1)(G) and Cal. Civil Code § 3426., "Confidential Information" shall mean trade secrets or other confidential research, development, or commercially 27 sensitive business information, the disclosure of which would cause competitive harm, that is 28 contained in Protected Documents.

b. "Designating Party" shall mean the Party or non-party designating Discovery Material as "Confidential." 3

c. "Discovery Materials" shall mean and include, without limitation, Documents, including Electronically Stored Information (ESI), responses to interrogatories, 5 requests for admissions, or other discovery requests, physical objects, samples, CD-ROMs, tapes or 6 other items, deposition transcripts and exhibits thereto, and information provided by or on behalf of 7 the Parties or any non- party witness pursuant to subpoena or otherwise in the course of discovery. 8

d. "Document" shall mean and include, without limitation, all written material, videotapes and all other tangible items, produced in whatever format (e.g., hard copy, electronic, 10 digital, etc.) and on whatever media (e.g., hard copy, videotape, computer diskette, CD-ROM, 11 DVD, hard drive or otherwise) defined as broadly as permitted under FRCP 34. 12

e. "Party" or "Parties" shall mean and include the parties to this litigation.

f. "Pleadings" shall mean and include, without limitation, all papers, motions, briefs, affidavits, declarations, exhibits, etc., filed with the Court. 15

g. "Protected Documents" shall mean documents to be produced in this litigation which contain Confidential Information. 17

3. Designating Confidential Information.

a. All designations of Confidential Information shall be made in good faith by 19 the Designating Party and made at the time of disclosure, production, or tender. 20

b. The designation of Confidential Information may be made by marking or 21 placing the applicable notice "Subject to Protective Order," "Confidential," or substantially similar 22 notice, on the document, or, where a copy of the original document is to be produced, on that copy. 23

c. Any document or any information designated as "Subject to Protective Order," "Confidential," or similar language in accordance with the provisions of this Order shall 25 only be used, shown or disclosed as provided in this Order. 26

d. The burden of proving that a Protected Document contains Confidential Information is on the Designating Party. Prior to designating any material as "Confidential," the 28 Designating Party must make a bona fide determination that the material is, in fact, a trade secret or 2 other confidential research, development, or commercial information pursuant to FRCP 26(c)(1)(G). 3

e. If a Party disagrees with the "Confidential" designation of any Protected Document, the party will so notify the Designating Party in writing. Counsel shall confer in good 5 faith in an effort to resolve any dispute concerning such designation or redaction. If the objection 6 cannot be resolved by agreement, the Party challenging the "Confidential" designation may move 7 the Court to overrule the confidentiality designation or redaction. Any opposition to such motion 8 shall be filed within fourteen days of the filing of such motion. The document or information 9 whose "Confidential" designation or redaction is objected to shall continue to be treated as "Confidential," as applicable, until the motion has been decided by the Court. In the event that a 11 motion to overrule a confidentiality designation is granted, the Designating Party shall cause the 12 confidentiality legend or redaction to be removed from such documents within fourteen days 13 following entry of the Court's order.

4. Use and Disclosure of Protected Documents.

a. Protected Documents and any copies thereof received pursuant to this Protective Order shall be maintained Confidential by the receiving party, his/her attorney, other 17 representatives, and expert witnesses, and shall be used only for purposes of this action, only, 18 subject to the limitations set forth herein. The persons or entities identified in Paragraph 4(b)(i)-(ix) 19 below to whom Protected Documents are disclosed pursuant to this Order shall keep all such 20 materials and information, and any copies, notes, extracts, summaries, or descriptions of such 21 material, within their exclusive possession and control, shall treat all such copies, notes, extracts, 22 summaries, or descriptions of the Protected Documents or any portion thereof as Confidential, shall 23 take all necessary and prudent measures to maintain the confidentiality of all such materials or 24 information, and shall not disseminate such Protected Documents other than in accordance with this 25 Order. 26

b. Protected Documents shall be disclosed only to "Qualified Persons."

Qualified Persons are limited to: 28

i. The Court and its personnel

ii. The Parties to this litigation;

iii. Counsel of record in this litigation, as well as paralegals, technical, administrative and clerical employees working under the direct supervision of such counsel;

iv. Experts and non-attorney consultants retained by the Parties for the preparation or trial of this case, provided that no disclosure shall be made to any expert or consultant who is currently employed by an automobile manufacturer competitor of Ford;

v. A potential, anticipated or actual fact witness whom counsel for the disclosing Party believes in good faith is likely to have knowledge pertaining to the content of the Protected Documents to be disclosed;

vi. The author(s) or any recipient of the document;

vii. Litigation support consultants and vendors who provide litigation support services (e.g., photocopying, electronic discovery, videotaping, translating, preparing exhibits or demonstrations, etc.);

viii. Court reporters recording and/or transcribing deposition testimony; and

ix. any person expressly named and agreed to in writing by the Parties or by further Order of the Court

c. While the Parties may provide Protected Documents in accordance with 19 the provisions of this Protective Order in an electronic form, such documents may not be posted on 20 any website or internet accessible document repository that is accessible to anyone other than "Qualified Persons" listed above. 22

d. All persons described in Paragraph 4(b)(i)-(viii) above shall not under any 23 circumstance sell, offer for sale, advertise, or publicize either the Protected Documents and the 24 Confidential information contained therein or the fact that such persons have obtained Protected 25 Documents and Confidential Information. 26

e. Pursuant to Paragraph 4(b)(iv) above, for those persons that are designated 27 experts, each such expert shall not have access to Protected Documents without having first read, 28 acknowledged, and agreed to be bound by this Order by executing the Agreement to be Bound 2 attached as Exhibit A (the "Agreement to be Bound"). 3

5. Each Party's counsel shall retain each such executed Agreement to be Bound and 4 shall keep a list identifying (a) all persons to whom Protected Documents have been disclosed, and 5 (b) all Protected Documents disclosed to such persons. Each such executed Agreement to be Bound 6 shall not be made available to the Designating Party during the pendency of the litigation but shall 7 only be available for an in camera inspection by the Court if good cause for review is demonstrated 8 by the Designating Party. However, each such executed Agreement to be Bound and list shall be 9 submitted to counsel for the Designating Party at the termination of this litigation. 10

6. Designation of Deposition Testimony.

a. Deposition testimony that counsel for the Party or non-party witness 12 tendering such testimony, in good faith, believes refers to Protected Documents or information 13 obtained therefrom shall be designated as "CONFIDENTIAL," as applicable, by such counsel by 14 making a statement on the record for inclusion in the deposition transcript or, in writing, within 15 thirty (30) calendar days after receipt of the transcript. 16

b. When Protected Documents or information obtained therefrom is 17 designated as confidential in a deposition transcript, the counsel making the designation shall 18 instruct the reporter to imprint the legend "THIS TRANSCRIPT CONTAINS CONFIDENTIAL 19 INFORMATION" on the cover page of the transcript and to include, at the front of the transcript, a 20 page identifying all pages and lines designated "CONFIDENTIAL" in the transcript. 21

c. To the extent that Protected Documents or information obtained therefrom 22 are used in the taking of depositions and/or used as exhibits at trial, such documents or information 23 shall remain subject to the provisions of this Order, along with the transcript pages of the deposition 24 testimony and/or trial testimony dealing with the Protected Documents or information. 25

d. Any court reporter or transcriber who reports or transcribes testimony in 26 this action shall agree that all Confidential Information designated as such under this Order shall 27 remain Confidential and shall not be disclosed by them, except pursuant to the terms of this Order, 28 and that any notes or transcriptions of such testimony (and any accompanying exhibits) will be 2 retained by the reporter or delivered to counsel of record. 3

7. Filing Under Seal.

a. If any party wishes to file or lodge Protected Documents with the Court, 5 that party must provide the producing party with written notice that the Protected Documents will 6 be placed in the public court file unless the producing party files a timely motion or application to 7 seal the records under Local Rule 141. Within fourteen days of this notification, the producing 8 party may file a motion or application for an order sealing the Protected Documents. Pending 9 determination of the motion or application, the lodged document(s) will be conditionally under 10 seal. Until such time as the Court issues an order sealing the Protected Documents, the party 11 seeking to use the Protected Documents may refer only to a redacted version. Upon granting of an 12 order sealing the record, the Protected Documents will be sealed and labeled by the court clerk 13 according to Local Rule 141. Upon denial of such an order, the documents may be filed in the 14 public court file. 15

b. Within ninety (90) days after the conclusion of this case, counsel for the Party who has received Protected Documents shall either: (a) return to the Designating Party the 17 Protected Documents, including any documents which any such Party disclosed to any Qualified 18 Person, or (b) securely destroy the Protected Documents, including any documents which any such 19 Party disclosed to any Qualified Person, and certify in writing such destruction to the Designating 20 Party. 21

8. Inadvertent Production.

a. Inadvertent or unintentional production of documents or information 23 containing information which should have been designated as Confidential shall not be deemed a 24 waiver in whole or in part of the Party's claims of confidentiality. If a Party has inadvertently or 25 unintentionally produced information which should have been designated as Confidential, the 26 producing Party will notify the receiving Party within twenty-one (21) days of discovery, of the 27 inadvertent production and request that the Confidential designation be applied to such documents 28 or information. If a receiving party objects to the producing Party's Confidentiality designation, it will notify the producing Party of its objections in writing within seven (7) business days of receipt 2 of the notification described above. Within seven (7) business days, the producing Party may then 3 move the Court for an order compelling the protection of such information. Pending the Court's 4 ruling, a receiving Party agrees to maintain the documents as Confidential under the terms of this 5 Order. 6

b. Inadvertent or unintentional production of documents or information 7 containing information which should have been designated as privileged shall not be deemed a 8 waiver in whole or in part of the Party's claims of privilege. Pursuant to Fed. R. Evid. 502(b)-(d), if 9 a Party has inadvertently or unintentionally produced information subject to a claim of immunity or 10 privilege, upon written request made by the producing Party within twenty-one (21) days of 11 discovery, all copies of such information shall be returned to the producing Party within seven (7) 12 business days of such request unless the receiving party intends to challenge the producing Party's 13 assertion of privilege or immunity. If a receiving party objects to the return of such information 14 within the seven (7) business day period described above, the producing Party may move the Court 15 for an order compelling the return of such information. Pending the Court's ruling, a receiving 16 Party may sequester the inadvertently or unintentionally produced documents in a sealed envelope 17 and shall not make any use of such information. 18

9. Right to Use Own Information.

a. Nothing in this Order shall limit any Party's right to disclose to any person, 20 or use for any purpose, its own information and documents21

10. Subpoena or Order.

a. If a Party is served with a subpoena or an order issued in other litigation that 23 would compel disclosure of any information or items designated in this action as Confidential, 24 counsel for the receiving Party must promptly notify counsel for the Designating Party in writing, 25 and in no event, more than five (5) business days after receiving the subpoena or order. Counsel for 26 the receiving Party also must inform, in writing, the Party who caused the subpoena or order to 27 issue in the other litigation that some or all the material covered by the subpoena or order is the 28 subject of this Order.

11. Modification.

a. This Protective Order may not be waived, modified, abandoned or terminated, in 3 whole or part, except by an instrument in writing signed by the Parties or pursuant to further Court 4 Order. If any provision of this Protective Order shall be held invalid for any reason whatsoever, 5 the remaining provisions shall not be affected thereby. 6

12. Duration.

a. After termination of this litigation, the provisions of this Order shall continue 8 to be binding. This Court retains and shall have jurisdiction over the parties and recipients of the 9 Protected Documents for enforcement of the provisions of this Order following termination of this 10 litigation. 11

This Protective Order shall be binding upon the parties hereto, upon their attorneys, and 12 upon the Parties' and their attorneys' successors, executors, personal representatives, 13 administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, 14 independent contractors, or other persons or organizations over which they have control. 15 16


DYKEMA GOSSETT LLP 2 JOHN M. THOMAS, SBN: 266842 TAMARA A. BUSH, SBN: 197153 3 333 South Grand Avenue, Suite 2100 Los Angeles, California 90071 4 Telephone: (213) 457-1800 Facsimile: (213) 457-1850 5 LECLAIRRYAN 6 Dennis R. Kiker (Pro Hac Vice) 411 East Franklin Street, Fourth Floor 7 Richmond, Virginia 23219 Telephone: (804) 783-1109 8 ORRICK 9 NORMAN HILE, SBN: 57299 400 Capitol Mall, Suite 3000 10 Sacramento, California 95814-4497 Telephone: (916) 447-9200 11 Attorneys for Defendant 12 FORD MOTOR CO. 13


MARGIE DANIEL, ROBERT McCABE, MARY HAUSER, DONNA GLASS, and 17 ANDREA DUARTE, individually and on behalf of a class of similarly situated individuals 18 Plaintiffs, 19 v. 20 FORD MOTOR COMPANY, a Delaware 21 corporation, 22 Defendant.


Case No. 2:11-cv-02890-WBS -EFB

AGREEMENT TO BE BOUND AFFIDAVIT OF _______________________________________, being duly sworn and 27 personally appearing before the undersigned attesting officer, duly authorized by law to administer 28 oaths, deposes and says that the within statements are true and correct:


I have read the Stipulated Protective Order attached hereto, and I understand its terms and 3 meanings. 4


I agree that my signature below submits me to the jurisdiction of the United States District Court for the Central District of California, in which the action Margie Daniel, et al. 7 v. Ford Motor Company, et al. is pending, and binds me to the provisions of the Stipulated 8 Protective Order, including to all promises undertaken in the Order, as if originally agreed by 9 me. 10 11 12

Further Affiant sayeth not.

This ______ day of _______________________, _____.


SUBSCRIBED AND SWORN to before me 18 this ___ day of_________________, ____.



No.: My Commission Expires:


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