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Dennis Fernandez v. Toyota Motor Corporation

August 22, 2012

DENNIS FERNANDEZ PLAINTIFF,
v.
TOYOTA MOTOR CORPORATION, TOYOTA MOTOR NORTH AMERICA, INC., AND TOYOTA MOTOR SALES, U.S.A., INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Paul L. Abrams United States Magistrate Judge

NOTE: CHANGES MADE BY THE COURT

Donald L. Ridge (SBN 132171) dridge@mpplaw.com MORRIS POLICH & PURDY LLP 1055 West Seventh Street, 24th Floor Los Angeles, California 90017 Telephone: (213) 891-9100 Facsimile: (213) 488-1178 Megan Whyman Olesek (SBN 191218) molesek@kenyon.com KENYON & KENYON LLP 1801 Page Mill Road, Suite 210 Palo Alto, CA 94304-1216 Telephone: (650) 384-4700 Facsimile: (650) 384-4701 George E. Badenoch (pro hac vice) gbadenoch@kenyon.com John Flock (pro hac vice) jflock@kenyon.com Thomas R. Makin (pro hac vice) tmakin@kenyon.com KENYON & KENYON LLP One Broadway New York, New York 10004-1050 Telephone: (212) 425-7200 Facsimile: (212) 425-5288 Attorney for Defendants and Counterclaimants Toyota Motor Corporation, Toyota Motor North America, Inc.; and Toyota Motor Sales, U.S.A., Inc.

(See pages 10 and 15)

PROTECTIVE ORDER

And Related Counterclaims.

Based on the Parties' Joint Stipulation and for good cause appearing, IT IS HEREBY ORDERED that this Protective Order shall apply to all information, documents, testimony, and things subject to discovery in this Action and believed by a party, or by a non-party from whom discovery is requested, to contain trade secrets or other proprietary or confidential research, development, financial, or commercial information within the meaning of Rule 26(c), as set forth below:

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties stipulated to and petitioned the court to enter the Stipulated Protective Order. This Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4 below, this Stipulated Protective Order does not entitle the parties to file confidential information under seal; Local Civil Rule 79-5.1 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

2. DEFINITIONS

2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

2.4 Designated House Counsel: A maximum of two (2) House Counsel who seek access to "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information in this matter. Plaintiff Dennis Fernandez is not Designated House Counsel.

2.5 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE."

2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action, (2) is not a past or current employee of any other Party or of any other Party's competitor, or himself/herself a Party, and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's competitor.

2.8 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

2.9 "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information or Items: extremely sensitive "Confidential Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

2.10 House Counsel: attorneys who are employees of a Party to this action and who are responsible for advising their employer with respect to this litigation. House Counsel does not include Outside Counsel of Record or any other outside counsel.

2.11 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

2.12 Outside Counsel of Record: attorneys who are not Parties to this action and are not employees of a Party to this action but are retained to represent or advise a Party to this action and have appeared in this action on behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party. Outside Counsel of Record does not include Plaintiff Dennis Fernandez.

2.13 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).

2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.

2.15 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.

2.16 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE."

2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

3. SCOPE

The protections conferred by this Stipulated Protective Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Stipulated Protective Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

4. DURATION

Even after final disposition of this 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. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; or (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law; provided however, that this Order shall not apply to information, documents, things, and testimony sought to be introduced at trial. Issues involving the admissibility and confidential nature, if any, of evidence sought to be introduced at trial shall be addressed in the Pre-trial Exhibit Stipulation and the Final Pre-trial Conference, or as otherwise prescribed by the presiding judge, and the manner of presentation and use of "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE" material at trial shall be addressed at that time by the presiding judge and the conditions set forth in this Order shall not be binding on the presiding judge.

5. DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is reasonable and practical to do so consistent with the method of searching and producing, the Designating Party must designate for protection only the material, documents, items, or oral or written communications that qualify - so that material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions. In the event that a Receiving Party believes that information or items have been improperly designated, the Receiving Party shall identify the specific material for which designations are challenged and the Producing Party shall have ten days after the identification to re-designate the identified materials without penalty.

If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the mistaken designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.

Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or ...


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