The opinion
1 TOWER LEGAL GROUP, P.C.
RENEE P. ORTEGA (SBN 283441)
2 JAMES A. CLARK (SBN 278372)
ARIEL A. PYTEL (SBN 328917)
3 11335 Gold Express Drive, Suite 105
Gold River, California 95670
4 Telephone: (916) 361.6009
Facsimile: (916) 361.6019
5 Email: Renee.Ortega@TowerLegalGroup.com
James.Clark@TowerLegalGroup.com
6 Ariel.Pytel@TowerLegalGroup.com
7 Attorneys for Plaintiff
GULSHAN MADAN
8
JACKSON LEWIS P.C.
9 WENDY A. WALKER (SBN 295877)
BENJAMIN A. HUNTER (SBN 344098)
10 400 Capitol Mall, Suite 1600
Sacramento, California 95814
11 Telephone: (916) 341-0404
Facsimile: (916) 341-0141
12 Email: Wendy.Walker@JacksonLewis.com
Benjamin.Hunter@JacksonLewis.com
13
Attorneys for Defendant
14 AFFINITIV, INC.
15
UNITED STATES DISTRICT COURT
16
EASTERN DISTRICT OF CALIFORNIA
17
GULSHAN MADAN, CASE NO. 2:23-cv-02737-CSK
18
Plaintiff,
19
v. JOINT STIPULATION FOR
20 PROTECTIVE ORDER
AFFINITIV, INC.,
21 Defendant.
22 Complaint Filed: 10/20/2023
Removal Filed: 11/22/2023
23
24 1. PURPOSES AND LIMITATIONS
25 Disclosure and discovery activity in this action will involve production of confidential,
26 proprietary, or private information, including but not limited to, confidential documents related to
27 employment and personnel records, customer lists, proprietary, trade secret, or business
28 information or documents, or other commercially or competitively sensitive information, or
1 medical records, for which special protection from public disclosure and from use for any purpose
2 other than for which special protection from public disclosure and from use for any purpose other
3 than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and
4 petition the court to enter the following Stipulated Protective Order. The parties acknowledge that
5 this Order does not confer blanket protections on all disclosures or responses to discovery and that
6 the protection it affords from public disclosure and use extends only to the limited information or
7 items that are entitled to confidential treatment under the applicable legal principles. The parties
8 further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does
9 not entitle them to file confidential information under seal; Civil Local Rule 141 sets forth the
10 procedures that must be followed and the standards that will be applied when a party seeks
11 permission from the court to file material under seal.
12 2. DEFINITIONS
13 2.1 Challenging Party. A Party or Non-Party that challenges the designation of
14 information or items under this Order.
15 2.2 “CONFIDENTIAL” Information or Items. Information (regardless of how it
16 is generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule
17 of Civil Procedure 26(c).
18 2.3 Counsel (without qualifier). Outside Counsel of Record and House Counsel
19 (as well as their support staff).
20 2.4 Designating Party. A Party or Non-Party that designated information or
21 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
22 2.5 Disclosure or Discovery Material. All items or information, regardless of the
23 medium or manner in which it is generated, stored, or maintained (including, among other things,
24 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
25 responses to discovery in this matter.
26 2.6 Expert. A person with specialized knowledge or experience in a matter
27 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert
28 witness or as a consultant in this action.
1 2.7 House Counsel. Attorneys who are employees of a party to this action.
2 House Counsel does not include Outside Counsel of Record or any other outside counsel.
3 2.8 Non-Party. Any natural person, partnership, corporation, association, or
4 other legal entity not named as a Party to this action.
5 2.9 Outside Counsel of Record. Attorneys who are not employees of a party to
6 this action but are retained to represent or advise a party to this action and have appeared in this
7 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that
8 party.
9 2.10 Party. Any party to this action, including all of its officers, directors,
10 employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
11 2.11 Producing Party. A Party or Non-Party that produces Disclosure or
12 Discovery Material in this action.
13 2.12 Professional Vendors. Persons or entities that provide litigation support
14 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
15 organizing, storing, or retrieving data in any form or medium) and their employees and
16 subcontractors.
17 2.13 Protected Material. Any Disclosure or Discovery Material that is designated
18 as “CONFIDENTIAL.”
19 2.14 Receiving Party. A Party that receives Disclosure or Discovery Material
20 from a Producing Party.
21 3. SCOPE
22 The protections conferred by this Stipulation and Order cover not only Protected Material
23 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
24 all 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 Receiving
28 Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
1 publication not involving a violation of this Order, including becoming part of the public record
2 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 4. DURATION
7 Even after final disposition of this litigation, the confidentiality obligations imposed by this
8 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
10 and 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. DESIGNATING PROTECTED MATERIAL
15 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
16 Party or Non-Party that designates information or items for protection under this Order must take
17 care to limit any such designation to specific material that qualifies 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 unjustifiable within
21 the ambit of this Order.
22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are
23 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
24 unnecessarily encumber or retard the case development process or to impose unnecessary expenses
25 and burdens on other parties) expose the Designating Party to sanctions.
26 If it comes to a Designating Party’s attention that information or items that it designated for
27 protection do not qualify for protection, that Designating Party must promptly notify all other
28 Parties that it is withdrawing the mistaken designation.
1 5.2 Manner and Timing of Designations. Except as otherwise provided in this
2 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
3 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 Designation in conformity with this Order requires:
6 (a) For information in documentary form (e.g., paper or electronic documents, but
7 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
8 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion
9 or portions of the material on a page qualifies for protection, the Producing Party also must clearly
10 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
19 on 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 (b) For testimony given in deposition or in other pretrial or trial proceedings, that the
22 Designating Party identify on the record, before the close of the deposition, hearing, or other
23 proceeding, all protected testimony.
24 (c) For information produced in some form other than documentary and for any other
25 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
26 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
27 portion or portions of the information or item warrant protection, the Producing Party, to the extent
28 practicable, shall identify the protected portion(s).
1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
2 to 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. CHALLENGING CONFIDENTIALITY DESIGNATIONS
7 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation
8 of 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 waiver its right to
11 challenge a confidentiality designation by electing not to mount a challenge promptly after the
12 original designation is disclosed.
13 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
14 process by providing written notice of each designation it is challenging and describing the basis
15 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice
16 must recite that the challenge to confidentiality is being made in accordance with this specific
17 paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith
18 and must begin the process by conferring directly (in voice-to-voice dialogue; other forms of
19 communication are not sufficient) within 14 days of the date of service of notice. In conferring,
20 the Challenging Party must explain the basis for its belief that the confidentiality designation was
21 not proper and must give the Designating Party an opportunity to review the designated material,
22 to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for
23 the chosen designation. A Challenging Party may proceed to the next stage of the challenge process
24 only if it has engaged in this meet and confer process first or establishes that the Designating Party
25 is unwilling to participate in the meet and confer process in a timely manner.
26 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
27 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil
28 Local Rule 230 (and in compliance with Civil Local Rule 141, if applicable) within 21 days of the
1 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process
2 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a
3 competent declaration affirming that the movant has complied with the meet and confer
4 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such
5 a motion including the required declaration within 21 days (or 14 days, if applicable) shall
6 automatically waive the confidentiality designation for each challenged designation. In addition,
7 the Challenging Party may file a motion challenging a confidentiality designation at any time if
8 there is good cause for doing so, including a challenge to the designation of a deposition transcript
9 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
10 competent declaration affirming that the movant has complied with the meet and confer
11 requirements imposed by the preceding paragraph.
12 The burden of persuasion in any such challenge proceeding shall be on the Designating
13 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.
15 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. ACCESS TO AND USE OF PROTECTED MATERIAL
20 7.1 Basic Principles. A Receiving Party may use Protected Material that is
21 disclosed or produced by another Party or by a Non-Party in connection with this case only for
22 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
23 disclosed only to the categories of persons and under the conditions described in this Order. When
24 the litigation has been terminated, a Receiving Party must comply with the provisions of section 13
25 below (FINAL DISPOSITION).
26 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 ///
1 7.2 Disclosure of “CONFIDENTIAL” information or Items. Unless otherwise
2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
3 disclose any information or item designated “CONFIDENTIAL” only to:
4 (a) The Receiving Party’s Outside Counsel of Record in this action, as
5 well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
6 the information for this litigation;
7 (b) The officers, directors, and employees (including House Counsel) of
8 the Receiving Party to whom disclosure is reasonably necessary for this litigation;
9 (c) Experts (as defined in this Order) of the Receiving Party to whom
10 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
11 and Agreement to Be Bound: (Exhibit A);
12 (d) The court and its personnel;
13 (e) Court reporters and their staff, professional jury or trial consultants,
14 mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
15 litigation;
16 (f) During their depositions, witnesses in the action to whom disclosure
17 is reasonably necessary, unless otherwise agreed by the Designating Party ordered by the court.
18 Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material
19 must be separately bound by the court reporter and may not be disclosed to anyone except as
20 permitted under this Stipulated Protective Order.
21 (g) The author or recipient of a document containing the information or
22 a custodian or other person who otherwise possessed or knew the information.
23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
24 OTHER LITIGATION
25 If a Party is served with a subpoena or a court order issued in other litigation that compels
26 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
27 must:
28 (a) Promptly notify in writing the Designating Party. Such notification shall
1 include a copy of the subpoena or court order;
2 (b) Promptly notify in writing the party who caused the subpoena or order to
3 issue in the other litigation that some or all of the material covered by the subpoena or order is
4 subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective
5 Order; and
6 (c) Cooperate with respect to all reasonable procedures sought to be pursued by
7 the Designating Party whose Protected Material may be affected.
8 If the Designating Party timely seeks a protective order, the Party served with the subpoena
9 or court order shall not produce any information designated in this action as “CONFIDENTIAL”
10 before a determination by the court from which the subpoena or order issued, unless the Party has
11 obtained the Designating Party’s permission. The Designating Party shall bear the burden and
12 expense of seeking protection in that court of its confidential material – and nothing in these
13 provisions should be construed as authorizing or encouraging a Receiving Party in this action to
14 disobey a lawful directive from another court.
15 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
16 PRODUCED IN THIS LITIGATION
17 (a) The terms of this Order are applicable to information produced by a Non-
18 Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-
19 Parties in connection with this litigation is protected by the remedies and relief provided by this
20 Order;
21 (b) In the event that a Party is required, by a valid discovery request, to produce
22 a Non-Party’s confidential information in its possession, and the Party is subject to an agreement
23 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
24 1. Promptly notify in writing the Requesting Party and the Non-Party
25 that some or all of the information requested is subject to a confidentiality agreement with a Non-
26 Party;
27 2. Promptly provide the Non-Party with a copy of the Stipulated
28 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
1 description of the information requested; and
2 3. Make the information requested available for inspection by the Non-
3 Party.
4 (c) If the Non-Party fails to object or seek a protective order from this court
5 within 14 days of receiving the notice and accompanying information, the Receiving Party may
6 produce the Non-Party’s confidential information responsive to the discovery request. If the Non-
7 Party timely seeks a protective order, the Receiving Party shall not produce any information in its
8 possession or control that is subject to the confidentiality agreement with the Non-Party before a
9 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the burden
10 and expense of seeking protection in this court of its Protected Material.
11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
13 Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
14 the Receiving Party must immediately (a) notify in writing the Designating Party of the
15 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
16 Material, (c) inform the person or persons to whom authorized disclosures were made of all the
17 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
18 Agreement to Be Bound” that is attached hereto as Exhibit A.
19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
20 PROTECTED MATERIAL
21 When a Producing Party give notice to Receiving Parties that certain inadvertently produced
22 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
23 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended
24 to modify whatever procedure may be established in an e-discovery order that provides for
25 production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e),
26 insofar as the parties reach an agreement on the effect of disclosure of a communication or
27 information covered by the attorney-client privilege or work product protection, the parties may
28 incorporate their agreement in the stipulated protective order submitted to the court.
1 12. MISCELLANEOUS
2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
3 person to seek its modification by the court in the future.
4 12.2 Right to Assert Other Objections. By stipulating to the entry of this
5 Protective Order no Party waives any right it otherwise would have to object to disclosing or
6 producing any information or item on any ground not addressed in this Stipulated Protective Order.
7 Similarly, no Party waives any right to object on any ground to use in evidence of any of the
8 material covered by this Protective Order.
9 12.3 Filing Protected Material. Without written permission from the Designating
10 Party or a court order secured after appropriate notice to all interested persons, a Party may not file
11 in the public record in this action any Protected Material. A Party that seeks to file under seal any
12 Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed
13 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
14 issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request establishing
15 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled
16 to protection under the law. If a Receiving Party’s request to file Protected Material under seal
17 pursuant to Civil Local Rule 141 is denied by the court, then the Receiving Party may file the
18 information in the public record pursuant to Civil Local Rule 141.1 unless otherwise instructed by
19 the court.
20 13. FINAL DISPOSITION
21 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
22 Receiving Party must return all Protected Material to the Producing Party or destroy such material.
23 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
24 summaries, and any other format reproducing or capturing any of the Protected Material. Whether
25 the Protected Material is returned or destroyed, the Receiving Party must submit a written
26 certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
27 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protective
28 Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained
1 || any copies, abstracts, compilations, summaries, or any other format reproducing or capturing any
2 | of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival
3 || copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
4 | correspondence, deposition and trial exhibits, expert reports, attorney work-product, and consultant
5 || and expert work product, even if such materials contain Protected Material. Any such archival
6 || copies that contain or constitute Protected Material remain subject to this Protective Order as set
7 || forth in Section 4 (DURATION).
8 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
9 || DATED: April 25, 2024 /s/ Renee Ortega (with permission)
10 Renee Ortega
Attorneys for Plaintiff, Gulshan Madan
1]
12 | DATED: April 25, 2024 /s/ Wendy A. Walker
13 Wendy A. Walker
Attorneys for Defendant, Affinitiv, Inc.
14
ORDER
15
6 The Court has reviewed the parties’ stipulated protective order. (ECF No. 15.) The
stipulation comports with the relevant authorities and the court’s applicable local rule. See L.R.
8 141.1. The Court APPROVES the protective order, subject to the following clarification. The
19 Court’s Local Rules indicate that once an action is closed, it “will not retain jurisdiction over
50 enforcement of the terms of any protective order filed in that action.” L.R. 141.1(f); see also, e.g.,
31 MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017) (noting that
courts in the district generally do not retain jurisdiction for disputes concerning protective orders
33 after closure of the case). Thus, the Court will not retain jurisdiction over this protective order once
34 the case is closed. Additionally, the parties shall consider resolving any dispute arising under the
95 stipulated protective order according to the Court’s informal discovery dispute procedure.
Dated: April 29, 2024
26 cq - □ :
27 CHI SOO KIM
28 3,mada.2737 UNITED STATES MAGISTRATE JUDGE
Joint Stipulation for Protective Order Case No. 2:23-cv-02737-CSI
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, , of , declare under penalty of
4 perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued
5 by the United States District Court for the Eastern District of California on [DATE] in the case of
6 Madan v. Affinitiv, Inc., Case No. 2:23-cv-02737-CSK. I agree to comply with and to be bound by
7 all terms of this Stipulated Protective Order and I understand and acknowledge that failure to so
8 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
9 promise that I will not disclose in any manner any information or item that is subject to this
10 Stipulated Protective Order to any person or entity except in strict compliance with the provisions
11 of this Order.
12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern
13 District of California for the purposes of enforcing the terms of this Stipulated Protective Order,
14 even if such enforcement proceedings occur after termination of this action.
15 I hereby appoint of as my
16 California agent for service of process in connection with this action or any proceedings related to
17 enforcement of this Stipulated Protective Order.
18
19 Date:
20
21 City and State where sworn and signed:
22
23 Printed name:
24
25 Signature:
26
27
28 4889-8880-2725, v. 7