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Joseph Velson v. American President Lines

UNITED STATES DISTRICT COURT FOSTER NORTHERN DISTRICT OF CALIFORNIA


April 10, 2013

JOSEPH VELSON,
PLAINTIFF,
v.
AMERICAN PRESIDENT LINES, LTD.,
DEFENDANT

The opinion of the court was delivered by: Maria-Elena James Chief United States Magistrate Judge

STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION

1.PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of 27 confidential, proprietary, or private information for which special protection from public disclosure 28 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

PLAINTIFF JOSEPH VELSON ("Plaintiff") and DEFENDANT AMERICAN PRESIDENT LINES, LTD. ("Defendant"), jointly the "Parties", hereby stipulate to and petition the court to enter 3 the following Stipulated Protective Order. The Parties acknowledge that this Order does not confer 4 blanket protections on all disclosures or responses to discovery and that the protection it affords 5 from public disclosure and use extends only to the limited information or items that are entitled to 6 confidential treatment under the applicable legal principles. The Parties further acknowledge, as set 7 forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 8 confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the 9 procedures that must be followed and the standards that will be applied when a party seeks 10 permission from the court to file material under seal. 11

information or items under this Order. 14 15 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of

Civil Procedure 26(c). 17

18 as their support staff). 19

20 produces in disclosures or in responses to discovery as "CONFIDENTIAL." 21

22 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 23 transcripts, and tangible things), that are produced or generated in disclosures or responses to 24 discovery in this matter. 25

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the

26 litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this action. 28

2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel

2.DEFINITIONS

2.1 Challenging Party: a Party or Non-Party that challenges the designation of employmentlaw

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2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is

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2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well

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 medium

does not include Outside Counsel of Record or any other outside counsel. 2

3 entity not named as a Party to this action. 4

5 but are retained to represent or advise a party to this action and have appeared in this action on 6 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 7

8 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 9

Material in this action. 11

photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,

storing, or retrieving data in any form or medium) and their employees and subcontractors. 14

"CONFIDENTIAL."

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a

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 action

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

2.12 Professional Vendors: persons or entities that provide litigation support services (e.g.,

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2.13 Protected Material: any Disclosure or Discovery Material that is designated as

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Producing Party. 18

20 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 21 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 22 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 23

However, the protections conferred by this Stipulation and Order do not cover the following 24 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 25

Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 26 publication not involving a violation of this Order, including becoming part of the public record 27 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 28 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

3.SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material (as information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 2

Protected Material at trial shall be governed by a separate agreement or order. 3

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 6 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 7 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 8 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 9 time limits for filing any motions or applications for extension of time pursuant to applicable law. 10

13 limit any such designation to specific material that qualifies under the appropriate standards. The 14

Designating Party must designate for protection only those parts of material, documents, items, or 15 oral or written communications that qualify -- so that other portions of the material, documents,

items, or communications for which protection is not warranted are not swept unjustifiably within 17 the ambit of this Order. 18

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown

19 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 20 encumber or retard the case development process or to impose unnecessary expenses and burdens on 21 other Parties) expose the Designating Party to sanctions. 22

If it comes to a Designating Party's attention that information or items that it designated for 23 protection do not qualify for protection, that Designating Party must promptly notify all other Parties 24 that it is withdrawing the mistaken designation. 25

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 26 e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 27

Discovery Material that qualifies for protection under this Order must be clearly so designated 28 before the material is disclosed or produced.

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 fo employmentlaw

Lakeshore Avenue Oakland, California 94610

r protection under this Order must take care to

3 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the 4 legend "CONFIDENTIAL" to each page that contains protected material. If only a portion or 5 portions of the material on a page qualifies for protection, the Producing Party also must clearly 6 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 7

8 need not designate them for protection until after the inspecting Party has indicated which material it 9 would like copied and produced. During the inspection and before the designation, all of the material 10 made available for inspection shall be deemed "CONFIDENTIAL." After the inspecting Party has 11 identified the documents it wants copied and produced, the Producing Party must determine which

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but excluding

A Party or Non-Party that makes original documents or materials available for inspection

documents, or portions thereof, qualify for protection under this Order. Then, before producing the employmentlaw

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specified documents, the Producing Party must affix the "CONFIDENTIAL" legend to each page 14 that contains Protected Material. If only a portion or portions of the material on a page qualifies for 15 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making

appropriate markings in the margins). 17

Designating Party identify on the record, before the close of the deposition, hearing, or other 19 proceeding, all protected testimony. 20 (c) for information produced in some form other than documentary and for any other tangible

21 items, that the Producing Party affix in a prominent place on the exterior of the container or 22 containers in which the information or item is stored the legend "CONFIDENTIAL." If only a 23 portion or portions of the information or item warrant protection, the Producing Party, to the extent 24 practicable, shall identify the protected portion(s). 25

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

26 designate qualified information or items does not, standing alone, waive the Designating Party's 27 right to secure protection under this Order for such material. Upon timely correction of a 28 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in

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

accordance with the provisions of this Order. 2

4 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 5 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 6 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 7 confidentiality designation by electing not to mount a challenge promptly after the original 8 designation is disclosed. 9

10 by providing written notice of each designation it is challenging and describing the basis for each 11 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

recite that the challenge to confidentiality is being made in accordance with this specific paragraph

of the Protective Order. The Parties shall attempt to resolve each challenge in good faith and must 14 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 15 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

Party must explain the basis for its belief that the confidentiality designation was not proper and 17 must give the Designating Party an opportunity to review the designated material, to reconsider the 18 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 19 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 20 has engaged in this meet and confer process first or establishes that the Designating Party is 21 unwilling to participate in the meet and confer process in a timely manner. 22

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

23 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 24

Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) 25 within 21 days of the initial notice of challenge or within 14 days of the Parties agreeing that the 26 meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must 27 be accompanied by a competent declaration affirming that the movant has complied with the meet 28 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to

6.CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process employmentlaw

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make such a motion including the required declaration within 21 days (or 14 days, if applicable) 2 shall automatically waive the confidentiality designation for each challenged designation. In 3 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 4 time if there is good cause for doing so, including a challenge to the designation of a deposition 5 transcript or any portions thereof. Any motion brought pursuant to this provision must be 6 accompanied by a competent declaration affirming that the movant has complied with the meet and 7 confer requirements imposed by the preceding paragraph. 8

9

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 10 unnecessary expenses and burdens on other Parties) may expose the Challenging Party to sanctions. 11 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to

retain confidentiality as described above, all Parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party's designation until the court 14 rules on the challenge. 15

17 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 18 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 19 the categories of persons and under the conditions described in this Order. When the litigation has 20 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 21

Protected Material must be stored and maintained by a Receiving Party at a location and in a

23 secure manner that ensures that access is limited to the persons authorized under this Order. 24

25 the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 26 information or item designated "CONFIDENTIAL" only to: 27

(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of

28 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for

7.ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or

DISPOSITION). 22

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

this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is 2 attached hereto as Exhibit A; 3

(b) the officers, directors, and employees (including House Counsel) of the Receiving Party

4 to whom disclosure is reasonably necessary for this litigation and who have signed the 5

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

7 reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement 8 to Be Bound" (Exhibit A); 9

(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 13

14 necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), 15 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

deposition testimony or exhibits to depositions that reveal Protected Material must be separately 17 bound by the court reporter and may not be disclosed to anyone except as permitted under this 18

(g) the author or recipient of a document containing the information or a custodian or other

20 person who otherwise possessed or knew the information. 21 24 disclosure of any information or items designated in this action as "CONFIDENTIAL," that Party 25 must: 26

27 the subpoena or court order; 28

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

"Acknowledgment and Agreement to Be Bound" (Exhibit A); 6

(d) the court and its personnel;

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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Stipulated Protective Order. 19

8.PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation that compels

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

other litigation that some or all of the material covered by the subpoena or order is subject to this 2

Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 3

(c) cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected. 5

6 or court order shall not produce any information designated in this action as "CONFIDENTIAL" 7 before a determination by the court from which the subpoena or order issued, unless the Party has 8 obtained the Designating Party's permission. The Designating Party shall bear the burden and 9 expense of seeking protection in that court of its confidential material -- and nothing in these 10 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 11 disobey a lawful directive from another court.

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

9.A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

THIS LITIGATION

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15 action and designated as "CONFIDENTIAL." Such information produced by Non-Parties in

Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 18 protections. 19

Non-Party not to produce the Non-Party's confidential information, then the Party shall: 22

23 some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 24

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

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connection with this litigation is protected by the remedies and relief provided by this Order. 17

(b) In the event that a Party is required, by a valid discovery request, to produce a Non-

Party's confidential information in its possession, and the Party is subject to an agreement with the 21

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

(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 description of the 26 information requested; and 27

(3) make the information requested available for inspection by the Non-Party.

(c) If the Non-Party fails to object or seek a protective order from this court within 14 days of

receiving the notice and accompanying information, the Receiving Party may produce the Non-2

Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a 3 protective order, the Receiving Party shall not produce any information in its possession or control 4 that is subject to the confidentiality agreement with the Non-Party before a determination by the 5 court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 6 seeking protection in this court of its Protected Material. 7

10.UNAUTHORIZED DISCLOSURE OF 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 Order, 10 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 11 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to 14

inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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Be Bound" that is attached hereto as Exhibit A. 15

18 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 19 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 20 modify whatever procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 22

Parties reach an agreement on the effect of disclosure of a communication or information covered by 23 the attorney-client privilege or work product protection, the Parties may incorporate their agreement 24 in the stipulated protective order submitted to the court. 25

27 its modification by the court in the future. 28

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order

11.INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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

12.MISCELLANOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek

no Party waives any right it otherwise would have to object to disclosing or producing any 2 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 3

Party waives any right to object on any ground to use in evidence of any of the material covered by 4 this Protective Order. 5

12.3 Filing Protected Material. Without written permission from the Designating Party or a

6 court order secured after appropriate notice to all interested persons, a Party may not file in the 7 public record in this action any Protected Material. A Party that seeks to file under seal any Protected 8

Material must comply with Civil Local Rule 79-5 and General Order 62. Protected Material may 9 only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected 10

Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order will issue 11 only upon a request establishing that the Protected Material at issue is privileged, protectable as a

to protection under the law. If a Receiving Party's request to file

Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order 62 is denied 14 by the court, then the Receiving Party may file the information in the public record pursuant to Civil 15

Local Rule 79-5(e) unless otherwise instructed by the court.

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trade secret, or otherwise entitled

FOSTER 13.FINAL DISPOSITION

As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, 20 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 21 the Protected Material is returned or destroyed, the Receiving Party must submit a written 22 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 23 by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 24 that was returned or destroyed and (2)affirms that the Receiving Party has not retained any copies, 25 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 26

Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 28 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant

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. 19

and expert work product, even if such materials contain Protected Material. Any such archival copies 2 that contain or constitute Protected Material remain subject to this Protective Order as set forth in 3

Section 4 (DURATION). 4

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: April 7, 2013 FOSTER EMPLOYMENT LAW 7 /s/ Peter Goldsmith 8 PETER GOLDSMITH Attorneys for Defendant 9 AMERICAN PRESIDENT LINES, LTD. 10 11 employmentlaw Lakeshore Avenue Oakland, California 94610 DATED: April 7, 2013 LAW OFFICE OF FRANK E. MAYO 13 14 /s/ Frank E. Mayo FRANK E. MAYO 15 Attorney for Plaintiff JOSEPH VELSON FOSTER

PURSUANT TO STIPULATION, IT IS SO ORDERED

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

[print or type full address], declare under penalty of perjury that I have read in 5 its entirety and understand the Stipulated Protective Order that was issued by the United States 6

District Court for the Northern District of California on _________________ in the case of 7

JOSEPH VELSON v. AMERICAN PRESIDENT LINES, LTD Case No. CV-012-3942 MEJ. I 8 agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and punishment 10 in the nature of contempt. I solemnly promise that I will not disclose in any manner any information 11 or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. 13

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 15

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Order, even if such enforcement proceedings occur after termination of this action. 16

I hereby appoint __________________________ [print or type full name] of

_______________________________________ [print or type full address and telephone number] as 18 my California agent for service of process in connection with this action or any proceedings related 19 to enforcement of this Stipulated Protective Order. 20 21

City and State where sworn and signed: 23

[printed name]

Dated: 22

Printed Name: 24

Signature: 26

[signature]

20130410

© 1992-2013 VersusLaw Inc.



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Official citation and/or docket number and footnotes (if any) for this case available with purchase.

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