American Fire & Casualty Company v. Ford Motor Company ( 2022 )

1 H. Grant Law (SBN 144505) hlaw@shb.com 2 Samantha Burnett (SBN: 320262) sburnett@shb.com 3 Melina Manetti (SBN: 318350) mmanetti@shb.com 4 SHOOK, HARDY & BACON L.L.P. 555 Mission Street, Suite 2300 5 San Francisco, California 94105 Telephone: 415.544.1900 6 Facsimile: 415.391.0281 7 Scott A. Richman (admitted pro hac vice) srichman@mtwlegal.com 8 MCDONALD TOOLE WIGGINS, P.C. 111 N. Magnolia Ave., Suite 1200 9 Orlando, FL 32801 Telephone: 407.246.1800 10 Facsimile: 407.246.1895 11 Attorneys for Defendant FORD MOTOR COMPANY 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 AMERICAN FIRE & CASUALTY Case No. 2:20-cv-00116-WBS-KJN COMPANY, 16 PARTIES’ STIPULATED PROTECTIVE Plaintiff, ORDER 17 vs. 18 FORD MOTOR COMPANY, a Delaware 19 Corporation and DOES 1 through 25, 20 Defendant. BEATRICE DAILY, EXECUTRIX OF THE Case No. 2:20-cv-00325-WBS-KJN 21 ESTATE OF BYRON PAIZS, DECEASED 22 Plaintiff, 23 vs. 24 FORD MOTOR COMPANY, a Delaware Corporation and DOES 1 through 25, 25 Defendant. 26 27 1 In order to preserve and maintain the confidentiality of certain “confidential information” 2 and/or proprietary documents produced or to be produced by FORD MOTOR COMPANY (“Ford”) 3 or by any party in this action, it is ordered that: 4 1. “Confidential information” shall mean information that the party designating 5 confidential reasonably believes to fall within the following definition: 6 a. Trade secrets, meaning information, including a formula, pattern, compilation, 7 program, device, method, technique, or process that: 8 Derives independent economic value, actual or potential, from not being 9 generally known to, and not being readily ascertainable by proper means by, 10 other persons who can obtain economic value from its disclosure or use; and 11 is the subject of efforts that are reasonable under the circumstances to maintain 12 its secrecy. 13 b. Research, development, or commercial information that is of a highly 14 competitively sensitive nature, and the release of which would likely cause 15 proprietary, competitive, or economic harm. 16 c. Information protected from disclosure by law, contract or policy. 17 2. Documents or information to be produced or provided by Ford or any party in this 18 litigation that contain confidential information and/or proprietary information may be designated as 19 confidential by marking or placing the applicable notice “Subject to Protective Order,” or 20 “Confidential,” or substantially similar language on media containing the documents, on the 21 document itself, or on a copy of the document, in such a way that it does not obscure the text or 22 other content of the document. 23 3. As used in this Order, the terms “documents” or “information” mean all written 24 material, electronic data, videotapes and all other tangible items, produced in whatever format (e.g., 25 hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape, computer 26 diskette, CD-ROM, DVD, by secure electronic transmission, hard drive or otherwise). 27 4. Documents or information designated as “Subject to Protective Order,” or 1 (“Protected Documents” or “Protected Information”) shall only be used, shown or disclosed as 2 provided in this Order. However, nothing in this Order shall limit a party’s use or disclosure of his 3 or her own information designated as a Protected Document or Protected Information. 4 5. If a receiving party disagrees with the “Protected” designation of any document or 5 information, the party will notify the producing party in a written letter and identify the challenged 6 document(s) with specificity, including Bates-number(s) where available, and the specific grounds 7 for the objection to the designation. If the parties are unable to resolve the issue of confidentiality 8 regarding the challenged document(s), the designating party will thereafter timely apply to the Court 9 pursuant to the Court’s procedures for discovery disputes, for the purpose of establishing that the 10 challenged document(s) or information is/are confidential. Protected Documents will continue to 11 be treated as such pending determination by the Court as to the confidential status. 12 6. Protected Documents and any copies thereof shall be maintained confidential by the 13 persons authorized to receive the documents pursuant to paragraph 6 and shall be used only for 14 prosecuting, defending, or attempting to settle this litigation, subject to the limitations set forth 15 herein. 16 7. Protected Documents shall be disclosed only to “Qualified Persons.” Qualified 17 Persons are limited to: 18 a. Counsel of Record for the parties, and the parties; 19 b. Paralegals and staff employed by Counsel of Record and involved in the 20 preparation and trial of this action; 21 c. A vendor hired by a party to host data and maintain a database of electronic 22 data or perform other work related to the collection, review or production of 23 documents in the case; 24 d. Experts and non-attorney consultants retained by the parties for the 25 preparation and/or trial of this case, provided that no disclosure shall be made 26 to any expert or consultant who is employed by a competitor of Ford; and 27 e. The Court, the Court’s staff, witnesses, and the jury in this case. 1 8. The receiving party must make reasonable efforts to ensure the individuals described 2 in paragraphs 6(b), 6(c) and 6(d) above are Qualified Persons. 3 9. Before receiving access to any Protected Document or the information contained 4 therein, each person described in paragraphs 6(b), 6(c) and 6(d) above shall execute a “Written 5 Assurance” in the form contained in Exhibit A, attached hereto. The receiving party shall retain 6 each such executed Written Assurance and shall keep a list identifying (a) all persons described in 7 paragraphs 6(b), 6(c) and 6(d) above to whom Protected Documents have been disclosed, and (b) 8 all Protected Documents disclosed to such persons. Each such executed Written Assurance and list 9 shall be submitted to counsel for Ford at the termination of this litigation or upon Order of the Court 10 requiring production, whichever comes first. However, for consulting experts who were not 11 designated as testifying experts, the receiving party may redact the name, address, and signature of 12 the consultant before disclosing the executed Exhibit A and document list for that person. To the 13 extent the “Qualified Persons” described in paragraph 6(d) above include privileged non-testifying 14 expert consultants, the receiving party shall retain each such executed Exhibit A and shall keep a 15 list identifying (a) all such non-testifying expert consultants described in paragraphs 6(d) above to 16 whom Protected Documents have been disclosed, and (b) all Protected Documents disclosed to such 17 persons. In the event that Ford (or the producing party) seeks to compel the production of each 18 unredacted and executed Exhibit A for good cause, the receiving party shall submit each unredacted 19 and executed Exhibit A and list to the Court for in camera inspection. Persons described in 20 paragraph 6(b) shall be covered under the signature of Counsel of Record. 21 10. As the Protected Documents may only be distributed to Qualified Persons, Qualified 22 Persons may not post Protected Documents on any website or internet accessible document 23 repository, excepting a vendor hosted review platform for the sole purpose of reviewing the 24 information for the subject case and not for any other purpose, and shall not under any circumstance 25 sell, offer for sale, advertise, or publicize either the Protected Documents and the Confidential 26 information contained therein or the fact that such persons have obtained Ford’s (or the producing 27 party’s) Protected Documents and confidential information. 1 11. To the extent that Protected Documents or information obtained therefrom are used 2 in written discovery or in the taking of depositions (including exhibits) or other pretrial discovery 3 or testimony and/or used as exhibits at trial, such documents or information shall remain subject to 4 the provisions of this Order, including any transcript pages of the deposition testimony and/or trial 5 testimony dealing with, referring to or referencing the Protected Documents or information. 6 Designation of the portion of the transcript (including exhibits) which contains references to 7 Protected Documents or information shall be made (i) by a statement to such effect on the record 8 during the proceeding in which the testimony is received, or (ii) by written notice served on counsel 9 of record in this Litigation within thirty (30) business days after the receipt of the draft or final 10 transcript (whichever is received earlier) of such proceeding (as used herein, the term “draft 11 transcript” does not include an ASCII or rough transcript). However, before such thirty (30) day 12 period expires, all testimony, exhibits and transcripts of depositions or other testimony shall be 13 treated as Protected Documents. All portions of transcripts not designed as Confidential within the 14 time frame provided herein shall be deemed not confidential. 15 12. If any party disagrees with the designation of all or part of a deposition transcript 16 designated as “Protected” pursuant to Paragraph 10 above, such party must notify the designating 17 party in a written letter and identify the testimony (by line and page designation) and the specific 18 grounds for the objection to the designation. If the parties are unable to resolve the issue of 19 confidentiality regarding the challenged deposition testimony, the designating party will thereafter 20 timely apply to the Court pursuant to the Court’s procedures for discovery disputes, for the purpose 21 of establishing that the challenged deposition testimony is confidential. The designated deposition 22 testimony at issue, and any related exhibits, will continue to be treated as a Protected Document 23 pending determination by the Court as to the confidential status. 24 13. All documents that are filed with the Court that contain any portion of any Protected 25 Document or information taken from any Protected Document shall be filed under seal by following 26 the protocols for sealed filings in this Court. The parties agree that there is good cause and there 27 exist compelling reasons to seal the requested information. However, if a party believes that 1 protocols and rules in this Court, then the party wishing to file the materials shall particularly 2 identify the documents or information that it wishes to file to the producing party, in writing. The 3 parties will then meet and confer, in a good faith effort to resolve the dispute. Failing agreement, 4 the party wishing to file the materials must request a ruling from the Court on whether the Protected 5 Documents in question must be submitted under seal. The producing party shall have the burden of 6 justifying that the materials must be submitted under seal. Absent written permission from the 7 producing party or a court Order denying a motion to seal, a receiving party may not file in the 8 public record any Protected Documents. 9 14. Within one hundred and twenty (120) days after the conclusion of this case, counsel 10 for the parties who received Protected Documents, including any documents that any such party 11 disclosed to any person described in paragraph 6(b), (c) or (d) above, shall either (a) return to Ford 12 (or the producing party) the Protected Documents; or (b) securely destroy the Protected Documents 13 and certify such destruction to Ford (or the producing party) within one hundred and fifty (150) 14 days after the conclusion of this case. 15 15. Submission to regulatory agency or governmental entity: 16 a. This protective order shall not be construed to prohibit Ford’s disclosure or 17 production of safety-related information to a regulatory agency or 18 governmental entity with an interest in the safety-related information. 19 Material subject to this protective order may only be disclosed to a regulatory 20 agency or governmental entity with an interest in the safety-related 21 information by Ford, and such disclosure shall be made pursuant to 49 CFR 22 512 or similar applicable rules. 23 b. If other parties to this protective order have a reasonable belief that certain 24 documents are safety-related and need to be disclosed to a regulatory agency 25 or governmental entity, they are not prohibited from advising the regulatory 26 agency or governmental entity that they believe such documents were 27 produced in this case, however, any disclosure of such documents shall adhere 1 16. Inadvertent or unintentional production of documents or information containing 2 confidential information that should have been designated as Protected Document(s) shall not be 3 deemed a waiver in whole or in part of the party's claims of confidentiality. 4 17. The parties may disclose and produce responsive documents to each other in this 5 litigation, and seek to do so without risking waiver of any attorney-client privilege, work product or 6 other applicable privilege or protection. As such, the parties will adhere to the following procedures 7 with regard to the production of privileged or protected material, should that occur: 8 a. The production of documents (including both paper documents and 9 electronically stored information or “ESI”) subject to protection by the 10 attorney-client and/or work product doctrine or by another legal privilege 11 protecting information from discovery, shall not constitute a waiver of any 12 privilege or other protection, provided that the producing party notifies the 13 receiving party, in writing, of the production after its discovery of the same. 14 b. If the producing party notifies the receiving party after discovery that 15 privileged materials (hereinafter referred to as the “Identified Materials”) have 16 been produced, the Identified Materials and all copies of those materials shall 17 be returned to the producing party or destroyed or deleted, on request of the 18 producing party. The producing party will provide a privilege log providing 19 information upon request or if required by the Federal Rules of Civil 20 Procedure and applicable case law to the receiving party at the time the 21 producing party provides the receiving party notice of the Identified Materials. 22 If the receiving party has any notes or other work product reflecting the 23 contents of the Identified Materials, the receiving party will not review or use 24 those materials unless a court later designates the Identified Materials as not 25 privileged or protected. 26 c. The Identified Materials shall be deleted from any systems used to house the 27 documents, including document review databases, e-rooms and any other 1 the Identified Materials during any aspect of this matter or any other matter, 2 including in depositions or at trial, unless the documents have been designated 3 by a court as not privileged or protected. 4 d. The contents of the Identified Materials shall not be disclosed to anyone who 5 was not already aware of the contents of them before the notice was made. 6 The receiving party must take reasonable steps to retrieve the Identified 7 Materials if the receiving party disclosed the Identified Materials before being 8 notified. 9 e. If any receiving party is in receipt of a document from a producing party which 10 the receiving party has reason to believe is privileged, the receiving party shall 11 in good faith take reasonable steps to promptly notify the producing party of 12 the production of that document so that the producing party may make a 13 determination of whether it wishes to have the documents returned or 14 destroyed pursuant to this Stipulation and Order. 15 f. The party returning the Identified Materials may move the Court for an order 16 compelling production of some or all of the Identified Material returned or 17 destroyed, but the basis for such motion may not be based on the fact or 18 circumstances of the production. 19 g. The disclosure of Identified Materials in this action is not a waiver of the 20 attorney-client privilege, work product doctrine or any other asserted privilege 21 in any other federal or state proceeding, pursuant to Rule 502(d), Federal Rules 22 of Evidence. 23 18. No provision of this stipulated order shall constitute a concession by any party that 24 any documents are subject to protection by the attorney-client privilege, the work product doctrine 25 or any other potentially applicable privilege or doctrine. No provision of this stipulated order is 26 intended to waive or limit in any way either party’s right to contest any privilege claims that may 27 be asserted with respect to any of the documents produced except to the extent set forth herein. 1 19. In the event that a party produces a document without a confidentiality designation as 2 permitted by this Order, the following procedures shall apply: 3 a. The producing party shall, within fourteen (14) days of the discovery of the 4 disclosure, notify the other party in writing. The party receiving such notice 5 shall promptly destroy the document, including any copies it has, or return the 6 document on request of the producing party. Within ten (10) days after such 7 document is returned or its destruction certified, the producing party will 8 produce a new version of any such document that was returned or destroyed, 9 which will contain the appropriate confidentiality designation. 10 b. If the receiving party disputes the producing party’s claim of confidentiality, 11 that party may move the Court to challenge the confidential designation in 12 accordance with Paragraph 4 of this Order. If the receiving party elects to file 13 such a motion, the receiving party may retain possession of the document, but 14 shall treat it in accordance with the terms of the Protective Order pending 15 resolution of the motion. If the receiving party's motion is denied, the parties 16 shall promptly comply with Paragraph 18(a) of this Order. 17 c. The production of such document does not constitute a waiver of any claim of 18 confidentiality as set forth in this order or any other matter in any other 19 jurisdiction, unless otherwise ordered by the Court. 20 20. This Protective Order may not be waived, modified, abandoned or terminated, in 21 whole or part, except by an instrument in writing signed by the parties. If any provision of this 22 Protective Order shall be held invalid for any reason whatsoever, the remaining provisions shall not 23 be affected thereby. 24 21. After termination of this litigation, the provisions of this Order shall continue to be 25 binding. This Court retains and shall have jurisdiction over the parties and recipients of the 26 Protected Documents for enforcement of the provisions of this Order following termination of this 27 litigation. 1 22. This Protective Order shall be binding upon the parties hereto, upon their attorneys, 2 and upon the parties’ and their attorneys’ successors, executors, personal representatives, 3 administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, 4 independent contractors, or other persons or organizations over which they have control. 5 6 Dated: February 22, 2022 GROTEFELD HOFFMANN LLP 7 8 By: /s/ David Kestenbaum (as authorized on 02/22/2022) 9 Attorneys for Plaintiff AMERICAN FIRE & CASUALTY CO. 10 11 Dated: February 22, 2022 LAW OFFICES OF LAWRENCE M. KNAPP 12 By: /s/ Catherine Moss (as authorized on 02/22/2022) 13 Attorneys for Plaintiff 14 BEATRICE DAILY, EXECUTRIX OF THE 15 ESTATE OF BYRON PAIZS, DECEASED 16 Dated: February 22, 2022 SHOOK, HARDY & BACON LLP 17 18 By: /s/ Samantha K. N. Burnett 19 Samantha K. N. Burnett 20 Attorneys for Defendant FORD MOTOR CO. 21 22 ORDER 23 The court has reviewed the parties’ stipulated protective order. (See ECF No. 33). The 24 stipulation lists categories of information sought to be protected, and otherwise comports with the 25 relevant authorities and the court’s applicable local rule. See L.R. 141.1(c);1 see also Phillips ex 26 27 1 The Court’s Local Rules instruct the parties, when requesting a protective order, to include in their submission: (1) A description of the types of information eligible for protection under the order, with the 1 || rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (requiring a 2 || showing of good cause for protective orders). The court APPROVES IN PART the protective 3 || order, subject to the following clarification. The Local Rules state that once an action is closed, 4 || “unless otherwise ordered, the court will not retain jurisdiction over enforcement of the terms of 5 || any protective order filed in that action.” L.R. 141.1(f). Courts in the district generally do not 6 || agree to retain jurisdiction for disputes concerning protective orders after closure of the case. See, 7 || e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017). Thus, 8 || the court will not retain jurisdiction over this protective order once the case is closed, and rejects 9 || the portion of par. 21 related thereto. 10 || Dated: February 24, 2022 Foci) Aharon 12 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 13 14 || SD. daily.325 15 16 17 18 19 20 21 22 23 24 25 26 27 (2) A showing of particularized need for protection as to each category of information proposed to be covered by the order; and 28 (3) A showing as to why the need for protection should be addressed by a court order, as opposed to a private agreement between or among the parties. UNITED STATES DISTRICT COURT 1 EASTERN DISTRICT OF CALIFORNIA 2 3 AMERICAN FIRE & CASUALTY Case No. 2:20-cv-00116-WBS-KJN COMPANY, 4 PARTIES’ STIPULATED PROTECTIVE Plaintiff, ORDER 5 vs. 6 FORD MOTOR COMPANY, a Delaware 7 Corporation and DOES 1 through 25, 8 Defendant. BEATRICE DAILY, EXECUTRIX OF THE Case No. 2:20-cv-00325-WBS-KJN 9 ESTATE OF BYRON PAIZS, DECEASED 10 Plaintiff, 11 vs. 12 FORD MOTOR COMPANY, a Delaware Corporation and DOES 1 through 25, 13 Defendant. 14 15 16 EXHIBIT A 17 AFFIDAVIT OF _______________________________________, being duly sworn and 18 19 personally appearing before the undersigned attesting officer, duly authorized by law to administer 20 oaths, deposes and says that the within statements are true and correct: 21 1. 22 I have read the Stipulated Protective Order attached hereto, and I understand its terms and 23 meanings. 24 2. 25 I agree that my signature below submits me to the jurisdiction of the United States District 26 27 Court for the Eastern District of California, in the above captioned case and binds me to the provisions of the Stipulated Protective Order, including to all promises undertaken in the Order, as 1 2 if originally agreed by me. 3 Further Affiant sayeth not. 4 5 This ______ day of _______________________, 20___. 6 7 ___________________________________ AFFIANT_______________________________________ 8 9 SUBSCRIBED AND SWORN to before me this ___ day of _________________, 20__. 10 11 _____________________________________ NOTARY PUBLIC 12 Name:________________________________ No.:__________________________________ 13 My Commission Expires: ________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27