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Tyrone Pennix v. Iap World Services


December 5, 2012


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

STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION Complaint Filed: July 6, 2012 Trial Date: November 12, 2013 Judge: Hon. Lucy H. Koh


3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 6


Disclosure and discovery activity in this action are likely to involve production of

Order. The parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords from public disclosure and 8 use extends only to the limited information or items that are entitled to confidential treatment under 9 the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 10 that this Stipulated Protective Order does not entitle them to file confidential information under 11 seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed 12 and the standards that will be applied when a party seeks permission from the court to file material 13 under seal. 14

2.1. Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17

18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 19

2.3. Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 21 well as their support staff). 22

23 produces in disclosures or in responses to discovery as "CONFIDENTIAL." 24

25 medium or manner in which it is generated, stored, or maintained (including, among other things, 26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 27 responses to discovery in this matter. 28


2.2. "CONFIDENTIAL" Information or Items: information (regardless of how it is Civil Procedure 26(c). 20

2.7. House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 5 6 entity not named as a Party to this action. 7 8 action but are retained to represent or advise a party to this action and have appeared in this action 9 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 10 11 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 12 13 2.8. Non-Party: any natural person, partnership, corporation, association, or other legal 2.9. Outside Counsel of Record: attorneys who are not employees of a party to this 2.10. Party: any party to this action, including all of its officers, directors, employees, 2.11. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 14

2.4. Designating Party: a Party or Non-Party that designates information or items that it 2.5. Disclosure or Discovery Material: all items or information, regardless of the 2.6. Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 2 consultant in this action.

2.12. Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 16 storing, or retrieving data in any form or medium) and their employees and subcontractors. 17 18 2.13. Protected Material: any Disclosure or Discovery Material that is designated as 2.14. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 21 The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 24 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 25 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 26

However, the protections conferred by this Stipulation and Order do not cover the following 27 information: (a) any information that is in the public domain at the time of disclosure to a 28 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, including becoming part of the public 2 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 3 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 4 information lawfully and under no obligation of confidentiality to the Designating Party. Any use 5 of Protected Material at trial shall be governed by a separate agreement or order. 6

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 9 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 10 defenses in this action, with or without prejudice; and (2) final judgment herein after the 11 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 12 including the time limits for filing any motions or applications for extension of time pursuant to 13 applicable law. 14

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 17 limit any such designation to specific material that qualifies under the appropriate standards. The 18

Designating Party must designate for protection only those parts of material, documents, items, or 19 oral or written communications that qualify -- so that other portions of the material, documents, 20 items, or communications for which protection is not warranted are not swept unjustifiably within 21 the ambit of this Order. 22

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 23 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 24 encumber or retard the case development process or to impose unnecessary expenses and burdens 25 on other parties) expose the Designating Party to sanctions. 27 protection do not qualify for protection, that Designating Party must promptly notify all other 28


If it comes to a Designating Party's attention that information or items that it designated for Parties that it is withdrawing the mistaken designation.

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 4 designated before the material is disclosed or produced. 5 7 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 8 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, 3 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents,

Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only a 9 portion or portions of the material on a page qualifies for protection, the Producing Party also must 10 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). 11

A Party or Non-Party that makes original documents or materials available for inspection 12 need not designate them for protection until after the inspecting Party has indicated which material 13 it would like copied and produced. During the inspection and before the designation, all of the 14 material made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting 15

Party has identified the documents it wants copied and produced, the Producing Party must 16 determine which documents, or portions thereof, qualify for protection under this Order. Then, 17 before producing the specified documents, the Producing Party must affix the "CONFIDENTIAL" 18 legend to each page that contains Protected Material. If only a portion or portions of the material on 19 a page qualifies for protection, the Producing Party also must clearly identify the protected 20 portion(s) (e.g., by making appropriate markings in the margins). 21 22 the Designating Party identify on the record, before the close of the deposition, hearing, or other 23 proceeding, all protected testimony. 24

25 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 26 container or containers in which the information or item is stored the legend "CONFIDENTIAL." 27

If only a portion or portions of the information or item warrant protection, the Producing Party, to 28 the extent practicable, shall identify the protected portion(s).

(b) for testimony given in deposition or in other pretrial or trial proceedings, that

(c) for information produced in some form other than documentary and for any

2 designate qualified information or items does not, standing alone, waive the Designating Party's 3 right to secure protection under this Order for such material. Upon timely correction of a 4 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 5 in accordance with the provisions of this Order. 6

6.1. Timing of Challenges. Any Party or Non-Party may challenge a designation of

8 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 9 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 10 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 11 challenge a confidentiality designation by electing not to mount a challenge promptly after the 12 original designation is disclosed. 13

14 by providing written notice of each designation it is challenging and describing the basis for each 15 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 16 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 17 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 18 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 19 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 20

Party must explain the basis for its belief that the confidentiality designation was not proper and 21 must give the Designating Party an opportunity to review the designated material, to reconsider the 22 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 23 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 24 has engaged in this meet and confer process first or establishes that the Designating Party is 25 unwilling to participate in the meet and confer process in a timely manner. 26

27 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 28

5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.2. Meet and Confer. The Challenging Party shall initiate the dispute resolution process 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without court Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties 2 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each 3 such motion must be accompanied by a competent declaration affirming that the movant has 4 complied with the meet and confer requirements imposed in the preceding paragraph. Failure by 5 the Designating Party to make such a motion including the required declaration within 21 days (or 6 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged 7 designation. In addition, the Challenging Party may file a motion challenging a confidentiality 8 designation at any time if there is good cause for doing so, including a challenge to the designation 9 of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision 10 must be accompanied by a competent declaration affirming that the movant has complied with the 11 meet and confer requirements imposed by the preceding paragraph. 12

The burden of persuasion in any such challenge proceeding shall be on the Designating

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 14 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.

Unless the Designating Party has waived the confidentiality designation by failing to file a motion 16 to retain confidentiality as described above, all parties shall continue to afford the material in 17 question the level of protection to which it is entitled under the Producing Party's designation until 18 the court rules on the challenge. 19

7.1. Basic Principles. A Receiving Party may use Protected Material that is disclosed or 21 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the litigation has 24 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL Protected Material must be stored and maintained by a Receiving Party at a location and in 27 a secure manner that ensures that access is limited to the persons authorized under this Order. 28

7.2. Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered

by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 2 information or item designated "CONFIDENTIAL" only to: 3 4 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 5 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 6

(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed 9 the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 10 11 is reasonably necessary for this litigation and who have signed the "Acknowledgment and 12

(d) the court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants, mock 15 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and 16 who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 17

18 reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" 19 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 20 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 21 separately bound by the court reporter and may not be disclosed to anyone except as permitted 22 under this Stipulated Protective Order. 24 custodian or other person who otherwise possessed or knew the information. 25 disclosure of any information or items designated in this action as "CONFIDENTIAL," that Party (a) the Receiving Party's Outside Counsel of Record in this action, as well as Bound" that is attached hereto as Exhibit A; 7 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure Agreement to Be Bound" (Exhibit A); 13

(f) during their depositions, witnesses in the action to whom disclosure is (g) the author or recipient of a document containing the information or a


If a Party is served with a subpoena or a court order issued in other litigation that compels must: 2 3 include a copy of the subpoena or court order; 4

5 issue in the other litigation that some or all of the material covered by the subpoena or order is 6 subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective 7

(c) cooperate with respect to all reasonable procedures sought to be pursued by 9 the Designating Party whose Protected Material may be affected.

11 or court order shall not produce any information designated in this action as "CONFIDENTIAL" 12 before a determination by the court from which the subpoena or order issued, unless the Party has 13 obtained the Designating Party's permission. The Designating Party shall bear the burden and 14 expense of seeking protection in that court of its confidential material -- and nothing in these 15 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 16 disobey a lawful directive from another court.

Party in this action and designated as "CONFIDENTIAL." Such information produced by Non-21 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 23 additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to produce 25 a Non-Party's confidential information in its possession, and the Party is subject to an agreement 26 with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 27 28 that some or all of the information requested is subject to a confidentiality agreement with a Non-

(a) promptly notify in writing the Designating Party. Such notification shall

(b) promptly notify in writing the party who caused the subpoena or order to

Order; and 8

If the Designating Party timely seeks a protective order, the Party served with the subpoena


(a) The terms of this Order are applicable to information produced by a Non-

Parties in connection with this litigation is protected by the remedies and relief provided by this 22

(1) promptly notify in writing the Requesting Party and the Non-Party

(2) promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 4 description of the information requested; and 5

(3) make the information requested available for inspection by the Non- Party. 7 8 within 14 days of receiving the notice and accompanying information, the Receiving Party may 9 produce the Non-Party's confidential information responsive to the discovery request. If the Non-10

Party timely seeks a protective order, the Receiving Party shall not produce any information in its 11 possession or control that is subject to the confidentiality agreement with the Non-Party before a 12 determination by the court.*fn1 Absent a court order to the contrary, the Non-Party shall bear the 13 burden and expense of seeking protection in this court of its Protected Material.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective 17 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 18 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 20 terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and


When a Producing Party gives notice to Receiving Parties that certain inadvertently

(c) If the Non-Party fails to object or seek a protective order from this court


Agreement to Be Bound" that is attached hereto as Exhibit A. 24 produced material is subject to a claim of privilege or other protection, the obligations of the 25

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 26 is not intended to modify whatever procedure may be established in an e-discovery order that 27 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 2

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 3 communication or information covered by the attorney-client privilege or work product protection, 4 the parties may incorporate their agreement in the stipulated protective order submitted to the 5 court. 6 12.1. Right to Further Relief. Nothing in this Order abridges the right of any person to 8 seek its modification by the court in the future. 9 10 no Party waives any right it otherwise would have to object to disclosing or producing any 11 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by 13 this Protective Order. 14 15 a court order secured after appropriate notice to all interested persons, a Party may not file in the 16 public record in this action any Protected Material. A Party that seeks to file under seal any 17

Material may only be filed under seal pursuant to a court order authorizing the sealing of the 19 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a 20 sealing order will issue only upon a request establishing that the Protected Material at issue is 21 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 22

Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) 23 and General Order 62 is denied by the court, then the Receiving Party may file the information in 24 the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 25

Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. 28


12.2. Right to Assert Other Objections. By stipulating to the entry of this Protective Order 12.3. Filing Protected Material. Without written permission from the Designating Party or Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected 18


As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether 2 the Protected Material is returned or destroyed, the Receiving Party must submit a written 3 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 4 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected 5

Material that was returned or destroyed and (2)affirms that the Receiving Party has not retained 6 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of 7 the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 8 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 9 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 10 and expert work product, even if such materials contain Protected Material. Any such archival 11 copies that contain or constitute Protected Material remain subject to this Protective Order as set 12 forth in Section 4 (DURATION). 13



By: /s/ ERICA K. ROCUSH Erica K. Rocush Krystal N. LoPilato Attorneys for Defendant IAP WORLDWIDE SERVICES, INC. (erroneously sued herein as "IAP World Services") 20DATED: December 3, 2012 LAW OFFICES OF JOSEPH L. ALIOTO AND 21 ANGELA ALIOTO By: /s/ STEVEN L. ROBINSON Angela M. Alioto Steven L. Robinson Attorneys for Plaintiff TYRONE PENNIX



I, _____________________________ [print or type full name], of

[print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of Tyrone Pennix v. IAP World Services, 7

Stipulated Protective Order and I understand and acknowledge that failure to so comply could 9 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 10 not disclose in any manner any information or item that is subject to this Stipulated Protective 11

I further agree to submit to the jurisdiction of the United States District Court for the

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 14

I hereby appoint __________________________ [print or type full name] of _______________________________________ [print or type full address and telephone number] 17 as my California agent for service of process in connection with this action or any proceedings 18 related to enforcement of this Stipulated Protective Order. 19 20

City and State where sworn and signed: _________________________________ 22

Printed name: [printed name] 23


Case No. CV 12-03520 LHK. I agree to comply with and to be bound by all the terms of this 8

Order to any person or entity except in strict compliance with the provisions of this Order. 12 Order, even if such enforcement proceedings occur after termination of this action. 15 Date: 21

Signature: 24

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