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In Re: Toyota Motor Corp. Unintended Acceleration Marketing

May 10, 2012

IN RE: TOYOTA MOTOR CORP. UNINTENDED ACCELERATION MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: James V. Selna United States District Judge

This document relates to: ALL CASES

STIPULATED ADDENDUM TO FIRST AMENDED PROTECTIVE ORDER TO FACILITATE NHTSA PRODUCTION

This is an action in which the Plaintiffs in the putative multi-district, class-action litigation, In re Toyota Motor Corporation Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation, Civil Action No. 10-ML-2151-NS (FM0x) (C.D. Cal.) ("the Litigation") have served a subpoena on third-party the National Highway Traffic Safety Administration ("NHTSA"), an operating component of the U.S. Department of Transportation ("DOT") (the "subpoena"). A copy of the subpoena is attached hereto as Exhibit "1."

Counsel for the Plaintiffs and counsel for NHTSA have been engaging, and continue to engage, in a good faith meet-and-confer process to attempt to narrow the scope of the subpoena and resolve any disagreements between them. It is apparent, however, that the subpoena calls for NHTSA to produce information that should be protected from public disclosures, including, but not limited to, information protected by the Privacy Act of 1974, 5 U.S.C. § 552a, trade secrets as contemplated by Federal Rule of Civil Procedure 26(c)(1)(G), 49 U.S.C. § 30167, Exemption Four of the Freedom of Information Act, 5 U.S.C. § 552(b)(4), and/or the Trade Secrets Act, 18 U.S.C. § 1905, and other non-disclosure statutes or common law exemptions that protect from release personal privacy, trade secret, or deliberative information (collectively "Confidential Material").

NHTSA and the Parties wish to facilitate the production by and receipt of information from NHTSA pursuant to Plaintiffs' subpoena by stipulating to this Addendum to the existing First Amended Protective Order for the protection of Confidential and Highly Confidential Materials (as defined therein), dated January 19, 2011 in the Litigation (the "First Amended Protective Order"). By stipulating to this Addendum to the First Amended Protective Order, however, NHTSA in no way accedes to the jurisdiction of the U.S. District Court for the Central District of California for purposes of this subpoena and the Parties agree that the only proper venue for any action related to the subpoena of NHTSA is the issuing Court, namely, the U.S. District Court for the District of Columbia.

In order to permit the parties to have access to and use Confidential Material, as justified, for purposes of the Litigation without undermining or waiving the legitimate privacy concerns and without disclosing Confidential Material (as defined herein), pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is hereby ORDERED:

1. "Confidential Material" as used herein means information the disclosure of which to or by the receiving party would, in the good faith belief of NHTSA, result in the disclosure of one or more of the following categories of information: (i) proprietary, financial, technical, trade secret, or commercially sensitive information within the meaning of Federal Rule of Civil Procedure 26(c)(1)(G); (ii) information kept in a United States system of records that is subject to the provisions of the Privacy Act, 5 U.S.C. § 552a; (iii) information entitled to confidentiality protection under Exemption Four of the Freedom of Information Act, 5 U.S.C. § 552(a)(4) or 49 C.F.R. Part 512; (iv) information that NHTSA is otherwise prohibited or restricted from releasing publicly pursuant to applicable statutes, regulations, or directives; (v) information protected under other non-disclosure statutes or common law exemptions that protect from release personal privacy, trade secret, or deliberative information; and (vi) any other personal privacy information that may be protected from disclosure by law. Subject to the provisions of Paragraph 10 below, information produced will be deemed Confidential Material when so designated in the manner described in Paragraph 5 below.

2. Notwithstanding the provisions set forth herein, which are intended to address the specific concerns and statutory requirements relevant to NHTSA regarding production of its Confidential Material, the Parties to the Litigation do not wish to lessen or undermine the existing protections for production and receipt of the confidential and highly confidential information of the Parties as set forth in the existing First Amended Protective Order. The Parties have therefore agreed that, with respect to information produced and designated as "NHTSA CONFIDENTIAL" or "Subject to NHTSA Protective Order" by NHTSA pursuant to Paragraph 5 below, all such information will be treated and maintained by the Parties as HIGHLY CONFIDENTIAL under all applicable terms of the First Amended Protective Order pending further review and agreement by the Parties and NHTSA.

3. Similarly, notwithstanding the provisions set forth herein, the Parties to the Litigation do not wish to lessen or undermine the existing protections for production and receipt of Toyota's source code and source code related material as defined and as set forth in the existing First Amended Protective Order Governing the Exchange and Handling of Source Code and Source Code Related Material dated November 23, 2011 (the "Source Code Protective Order"). Accordingly, this Order shall not apply to Toyota source code and source code related material, or similar highly sensitive materials requiring special protection, the production and protection of which, to the extent implicated by NHTSA's response to Plaintiffs' subpoena, shall be subject to further review and agreement by NHTSA and the Parties prior to production of any said source code or source code related material.

4. By this Protective Order, counsel for NHTSA is hereby authorized, pursuant to 5 U.S.C. § 552a (b) (11) and consistent with 28 C.F.R. § 16.23, to release information otherwise protected by the Privacy Act, 5 U.S.C. § 552a, provided that the release of such information is reasonably related to the conduct of this Litigation. Without limiting the generality of the foregoing, counsel for NHTSA may release to counsel for Plaintiffs information covered by the Privacy Act whether such release is pursuant to discovery or otherwise, for use only in the Litigation.

5. The designation of Confidential Material may be made by NHTSA by placing or affixing prominently on produced documents containing Confidential Material the word "NHTSA CONFIDENTIAL," or "Subject to NHTSA Protective Order," indicating the confidential nature of the documents. Stamping the words "NHTSA CONFIDENTIAL," or "Subject to NHTSA Protective Order," on the cover of any multi-page document will designate all pages of the document as Confidential Material, unless otherwise indicated by NHTSA. Any electronically stored information, including electronically stored information produced in native file format, may be designated Confidential Material by affixing a label on the disk or other medium consistent with the above. Any summary, extract, paraphrase, quotation, restatement, compilation, notes, or copy containing Confidential Material, or any electronic image or database containing Confidential Material, will be subject to the terms of this Order to the same extent as the material or information from which such summary, extract, paraphrase, quotation, restatement, compilation, notes, copy, electronic image, or database is derived.

6. When designating information as protected hereunder, NHTSA represents thereby that it has done so in good faith and pursuant to a bona fide belief that such information is deserving of protection. Counsel and parties are referred to U.S. District Court for the District of Columbia Local Civil Rule 5.4(f) and that court's "Notice Regarding Privacy and Public Access to Electronic Civil Case Files," dated September 2004 [available at http://www.dcd.uscourts.gov/dcd/civil _privacy notice], for typical examples of material deserving "protected" status.

7. Testimony regarding Confidential Material taken at a deposition,*fn1 conference, hearing or trial may be designated as Confidential Material by counsel by making a statement to that effect on the record at the deposition or proceeding or in writing no later than 30 days after receipt of the final transcript of the proceeding. Other provisions for the handling of Confidential Material in depositions shall be governed by Paragraph 6(b) of the First Amended Protective Order. Any filing of Confidential Material shall be made in accordance with Paragraph 19 of the First Amended Protective Order. Arrangements must be made with the Court for treatment of any Confidential Material revealed at judicial proceedings taking place in court. Arrangements must also be made with the court reporter taking and transcribing such proceeding to separately bind, or otherwise segregate, such portions of the transcripts containing Confidential Material, and to label such portions appropriately. Persons other than persons authorized to receive access to Confidential Material will be excluded from attendance during portions of depositions in this matter at which such Confidential Material is shown or discussed.*fn2

8. All counsel of record receiving copies of documents, transcripts, responses to written questions, or any other material or information designated as Confidential Material must maintain such Confidential Material in their possession in a manner sufficient to protect such material against unauthorized disclosure. This Order applies to all vendors, including without limitation, any copy service or document storage companies. It is the ...


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