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DAVID A. ROSENFELD, Bar No. 058163
SHARON SEIDENSTEIN, Bar No. 215588
LISL R. DUNCAN, Bar No. 261875
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501-1091
Telephone 510.337.1001
Fax 510.337.1023
Attorneys for Plaintiff
SAUL GUTIERREZ LOPEZ
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CHRISTOPHER J. OLSON, Bar No. 192689
SWEENEY, MASON, WILSON & BOSOMWORTH
983 University Avenue, Suite 104C
Los Gatos, California 95030
Telephone 408.356.3000
Fax 408.354.8839
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Attorneys for Defendant
BURDICK PAINTING
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SANTA CLARA
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SAUL GUTIERREZ LOPEZ, on his own behalf )
and on behalf of all those similarly situated,
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Plaintiff,
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v.
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BURDICK PAINTING and DOES 1-20,
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inclusive,
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Defendants.
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Case No.
110CV184929
CLASS ACTION
STIPULATION AND [PROPOSED]
PROTECTIVE ORDER RE:
CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED
INFORMATION
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WHEREAS, discovery in this action may involve the disclosure of confidential and
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proprietary information pertaining to Defendant BURDICK PAINTING’s (hereafter “Defendant”)
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business operations and clients, and may involve the disclosure of confidential and private
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information regarding the Plaintiff and putative class members; Therefore, Plaintiff SAUL
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GUTIERREZ LOPEZ (hereafter “Plaintiff”) and Defendant, by and through their respective
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
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attorneys of record, stipulate and ask the Court to order as follows.
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I.
1.
DEFINITIONS
The term “documents” or “documents,” as used in this Confidentiality Protective
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Order (“Order”), shall have the same meaning as defined in California Evidence Code § 250 and
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California Code of Civil Procedure § 2016.020(c).
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2.
The term “Trade Secret,” as used in this Order, is defined to include information
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that: (a) derives independent economic value, actual or potential, from not being generally known
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to, and not being readily ascertainable by proper means by, other persons who can obtain economic
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value from its disclosure or use; (b) information, documents or materials not in the public domain
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that are so proprietary or competitively sensitive that their public disclosure is likely to cause
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competitive injury and (c) is the subject of efforts that are reasonable under the circumstances to
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maintain its secrecy.
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II. CONFIDENTIAL INFORMATION
3.
Any party to this action or other person or entity, including any third party, who
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produces or supplies information, documents or other materials used in this action (hereinafter the
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“Designating Party” or the “Producing Party”) may designate as “Confidential” any such
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information, document or material that it reasonably and in good faith believes, constitutes or
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contains Trade Secret information, personal information or private information regarding the
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parties, putative class members, persons or entities who are not parties to this action or are not yet
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parties to this action, or information protected from disclosure by law. The designation
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“Confidential” shall be made by affixing on the document or material containing such information,
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and upon each page so designated if practicable, a legend that in substance states:
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“CONFIDENTIAL.”
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Each party or non party that designates information or items for protection under this Order
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must take care to limit any such designation to specific material that qualifies under the appropriate
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standards. A designating party must take reasonable care to designate for protection only those
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parts of material, documents, items, or oral or written communications that the party reasonably
28
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-2STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
1
believes to qualify for protection – so that other portions of the material, documents, items, or
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communications for which protection is not warranted are not swept unjustifiably within the ambit
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of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that
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are shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to
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unnecessarily encumber or retard the case development process, or to impose unnecessary
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expenses and burdens on other parties), expose the designating party to sanctions. If it comes to a
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party’s or a non-party’s attention that information or items that it designated for protection do not
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qualify for protection at all, or do not qualify for the level of protection initially asserted, that party
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or non-party must promptly notify all other parties that it is withdrawing the mistaken designation.
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4.
Portions of Depositions may be designated Confidential by indicating that fact on
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the record at the deposition. If a Designating Party has advised the court reporter that Confidential
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information has been disclosed during a deposition, the court reporter shall include on the cover
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page the following indication: “DEPOSITION CONTAINS CONFIDENTIAL INFORMATION
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SUBJECT TO PROTECTIVE ORDER” or words to that effect. Within ten (10) business days of
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receipt of the initial transcript, the Designating Party shall advise the court reporter and opposing
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counsel of the specific pages and lines in which Confidential information appears. The court
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reporter shall supplement the transcript to mark the pages and lines designated as Confidential
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information and amend the cover page to reflect that these specific designations have been made.
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Prior to the receipt of the page and line designations, the parties shall treat the entire transcript as
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Confidential information for a period of ten (10) days after receipt of the initial transcript, if so
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designated at the deposition. If no designation has been made pursuant to this paragraph, the
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Confidential designation shall be removed from the deposition. Further, during depositions, any
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party claiming Confidential information is to be disclosed or upon which questions are based may
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exclude from the room any party or person who is not a Qualified Person, as defined in ¶ 5 below.
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III. QUALIFIED PERSONS
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5.
With respect to Confidential Information, “Qualified Persons” means:
a.
any named party;
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-3STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
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b.
in the case of corporate parties, the persons in charge of managing the
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litigation on behalf of the corporation shall be permitted to examine the
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confidential materials produced by the plaintiff(s), and counsel of record for
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the corporate party may allow any employee of the corporation to view - but
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not retain - such confidential material if counsel determines in good faith
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that the employee has a legitimate need to view the materials in order to
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assist with the corporation’s defense;
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c.
including regularly employed partners, associate attorneys, paralegals, and
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stenographic and clerical employees assisting such counsel;
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counsel of record engaged in the preparation for trial of this action,
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in-house counsel or any such other persons who are responsible for the
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handling of legal matters on behalf of a corporate party, including clerical
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employees assisting such counsel or persons;
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e.
clerical, data-processing and managing personnel not regularly employed by
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such counsel, but involved in the production, reproduction, organizing,
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storing, retrieving, cataloging, converting, filing, coding or review of
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discovery documents and other information to the extent reasonably
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necessary to assist such counsel in these proceedings;
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f.
reporters, and videographers used in connection with this litigation;
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g.
h.
i.
any expert or consultant retained, engaged or otherwise consulted by the
parties or their counsel in the course of litigation;
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any non-party who authored the documents or is shown to have previously
received the documents or other confidential information;
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insurers of the parties whose policies may be implicated by the claims raised
in this litigation;
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the Court and court personnel, deposition officers, interpreters, court
j.
deposition reporters, interpreters, and their assistants;
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-4STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
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k.
a non-party during the taking of his or her deposition;
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l.
deposition witnesses during a deposition;
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m.
potential lay witnesses that counsel reasonably believe have relevant
information; and
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n.
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allowed by the Court.
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any other person to whom the parties mutually agree in writing or who are
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Any information designated as Confidential information shall be made available
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only to Qualified Persons, and Qualified persons identified in subparts (k)-(n), above, shall further
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undertake in writing to be bound by its terms; to maintain that information designated as
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Confidential information in confidence; not to use or disclose information designated as
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Confidential information to anyone other than to a Qualified Person; and not to use Confidential
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information except in connection with the trial or preparation for trial of this proceeding, provided
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that nothing shall prevent disclosure beyond the terms of this Order if the party claiming
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confidentiality consents in writing prior to disclosure. Such persons shall indicate their agreement
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to be bound by the terms of this Protective Order by signing and dating an acknowledgment
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substantially in the form attached as Exhibit “A.”
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IV. COURT PROCEDURES FOR THE FILING OF CONFIDENTIAL INFORMATION
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7.
A party intending to submit Confidential information to the Court in connection
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with a motion or application must comply with the procedures mandated by California Rules of
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Court, Rule 243.1 and 243.2, or any subsequently promulgated statues or rules, which provide, in
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relevant part: “A party who files or intends to file with the court for the purposes of adjudication or
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to use at trial records produced in discovery that are subject to a confidentiality agreement or
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protective order, and does not intend to request to have the records sealed, must: (i) lodge the
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unredacted records subject to the confidentiality agreement or protective order and any pleadings,
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memorandums, declarations, and other documents that disclose the contents of the records, in the
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manner stated in [Rule 243.2 (d)]; (ii) file copies of the redacted documents lodged under (i) so that
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they do not disclose the contents of the records that are subject to the confidentiality agreement or
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-5STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
1
protective order; and (iii) give written notice to the party who produced the records that the records
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and the other documents lodged under (i) will be placed in the public court file unless that party
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files a timely motion or application to seal the records under this rule.
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V.
8.
A Qualified Person with custody of information designated as Confidential
information shall maintain it in a manner that limits access only to Qualified Persons.
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CUSTODY OF DESIGNATED MATERIALS
VI. INADVERTENT DISCLOSURE
9.
Should any document or information designated as Confidential hereunder be
disclosed, through inadvertence or otherwise, to any person or party not entitled to receive the
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same hereunder, then the parties shall use their best efforts to bind such person to the terms of this
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Order and:
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a.
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In the case of documents, such person shall be asked to destroy or return the
documents;
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b.
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Such person shall be promptly informed of all of the provisions of this Order
by the person who inadvertently disclosed the Confidential information;
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c.
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Such person shall be identified immediately to the party that designated the
document as confidential; and
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d.
Such person shall be requested to sign an agreement to abide by the terms of
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this Order, which signed agreement shall be served on the party that
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designated the document as confidential.
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VII. DISCOVERABILITY AND ADMISSIBILITY OF DOCUMENTS
10.
Nothing in this Stipulation and Order shall be construed to affect either the
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discoverability or admissibility at trial of any document, recording or thing, nor shall any party’s
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entry into this Stipulation and Order be deemed to waive either its right to object to the production
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of documents, recordings or things on appropriate grounds, or to move to compel the production of
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documents, recordings or things wrongfully withheld from production.
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-6STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
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VIII. CHALLENGES TO DESIGNATIONS OF CONFIDENTIAL INFORMATION
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A party objecting to a Confidential designation shall attempt to resolve the
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disagreement informally with the designating party or designating third party. If no resolution can
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be reached, the matter may be presented to the Court by the party challenging the confidential
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designation for a ruling on the confidentiality of the material designated as Confidential. The party
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or third party asserting the Confidential designation as to any material shall have the burden of
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justifying that designation consistent with California law. Until the Court rules otherwise, the
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challenged material shall be treated as designated, Confidential.
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12.
Nothing in this Protective Order shall prevent a party, at any time, from challenging,
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through motion or other application to the court, the propriety of a party’s designation of material
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as containing Confidential information.
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IX. USE OF CONFIDENTIAL INFORMATION
13.
All Confidential information disclosed by a party or a non-party shall be deemed
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confidential and used by the party to whom it is disclosed for the purposes of prosecuting or
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defending this action only, and shall not be disclosed or disseminated to the general public or used
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for any commercial, business or competitive purpose.
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X.
14.
NO WAIVER
Nothing herein shall be deemed to waive or diminish any applicable privilege or
work product protection.
15.
Nothing in this Order shall be deemed to limit, prejudice, or waive any right of any
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party or person: (a) to resist or compel discovery with respect to, or seek to obtain from the Court
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additional, more limited, or different protection for, material claimed to be protected as privileged,
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work product, trade secret, or confidential material, or material not required to be produced
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pursuant to the Code of Civil Procedure; (b) to seek to modify or obtain relief from any aspect of
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this Order; (c) to object to the use, relevance, or admissibility at trial of any evidence, whether or
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not comprised of confidential material governed by this Order; or (d) otherwise to require that
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discovery be conducted according to governing laws and rules.
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-7STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
1
16.
No party to this action shall be obligated to challenge the propriety of any
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designation and a failure to do so shall not constitute a waiver of, or preclude a subsequent attack
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on, the propriety of such designation.
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XI. NOT A CONTRACT
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This Stipulation and Protective Order shall not be construed or interpreted as
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creating a contract between the parties or between their counsel or between the parties and their
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counsel.
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XII. DISPOSITION OF MATERIALS AFTER LITIGATION COMPLETED
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Within three years after the final conclusion of this action, including any appeals
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and other related proceedings in appellate courts, either party may request that the other party
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destroy or return all Confidential information received through formal discovery in this case and all
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copies of any Confidential information. The request shall be in writing. Within 60 days after such
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request, the party receiving such a request shall return the confidential information unless the
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receiving party states, in writing, that the information is to be destroyed. Notwithstanding this
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provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers,
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transcripts, legal memoranda, correspondence or attorney work product, even if such materials
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contain Confidential information. Any such archival copies that contain or constitute Confidential
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information shall remain subject to this Protective Order. The parties agree that a breach of this
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Paragraph cannot be adequately remedied by an award of damages, but that injunctive relief,
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temporary and permanent, is available as a remedy and that this Paragraph shall be specifically
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enforceable where appropriate for that purpose.
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XIII. DURATION OF THIS ORDER
19.
The provisions of this Protective Order shall survive and remain in full force and
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effect until such time that the case is terminated or goes to trial. This Court shall retain jurisdiction
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to amend or modify this Order upon motion by a party or on its own motion. The provisions of
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this Protective Order concerning the use and/or disclosure of private consumer information, the
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disclosure of which is protected by state or federal law, shall survive the termination or final
28
WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-8STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
1
disposition of this action.
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XIV. ENFORCEMENT OF THIS ORDER
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The Court may enforce any provision of this Order and may punish any violation
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thereof, in accordance with its powers, including the power to find the wrongdoer in contempt of
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court. No provision of this Protective Order shall require any person or corporation not a party to
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this action to respond to any discovery request, except as may otherwise be required by law.
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Nothing in this Protective Order shall be interpreted to compel disclosure of discovery which is
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protected by the attorney client privilege, the attorney work product doctrine, or any other
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applicable privileges or doctrines. No provision of this Protective Order shall be deemed to
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enlarge or restrict the right of any party to conduct discovery. All parties shall be deemed the
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drafters of this Protective Order.
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XV. COUNTERPARTS
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This Stipulation may be executed in counterparts, each counterpart shall be deemed
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an original, and, when taken together with other signed counterparts, shall constitute one
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Stipulation and Protective Order. Copies and facsimile transmissions of signatures shall be
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considered the same as an original signature.
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IT IS SO STIPULATED.
Dated: March
, 2011
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WEINBERG, ROGER & ROSENFELD
A Professional Corporation
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By:
SHARON SEIDENSTEIN
Attorneys for Plaintiff
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Dated: March
, 2011
SWEENEY, MASON, WILSON & BOSOMWORTH
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By:
CHRISTOPHER J. OLSON
Attorneys for Defendant
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
-9STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
ORDER
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Based upon the foregoing Stipulation and Protective Order re: Confidentiality of Discovery
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Documents and Related Information, and good cause appearing therefore, IT IS SO ORDERED
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AND DECREED.
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Dated:
_
JUDGE OF THE SUPERIOR COURT
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123280/611818
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
- 10 STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929
EXHIBIT A
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DECLARATION OF “QUALIFIED PERSON” RE CONFIDENTIAL INFORMATION
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I, _____________________________, declare that I have read the Protective Order entered
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in the action entitled Saul Gutierrez Lopez, et al., v. Burdick Painting, et al., Santa Clara County
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Superior Court Case No. 110CV184929, and agree to comply with and be bound by its terms; to
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maintain that information designated as Confidential information in confidence; not to use or
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disclose information designated as Confidential information to anyone other than to a Qualified
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Person; and not to use Confidential information except in connection with the trial or preparation
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for trial of this proceeding, provided that nothing shall prevent disclosure beyond the terms of this
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Order if the producing party consents in writing prior to disclosure. To effectuate my compliance
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with this Order, I further submit myself to the personal and subject matter jurisdiction of the State
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of California for purposes of this action and Protective Order only.
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I declare under the penalty of perjury under the laws of the State of California that the
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foregoing is true and correct and that this Declaration is executed on ___________, _______.
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Signature of Declarant
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Print name:
_______________________________
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Affiliation:
_______________________________
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Business Address: ____________________________
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123280/611818
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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
29
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001
30
- 11 STIPULATION AND [PROPOSED] PROTECTIVE ORDER RE CONFIDENTIALITY OF DISCOVERY
DOCUMENTS AND RELATED INFORMATION
CASE NO. 110CV184929