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STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER

John P. Zaimes (SBN 91933)

jzaimes@reedsmith.com

John H. Lien (SBN 222842)

jlien@reedsmith.com

REED SMITH LLP

355 South Grand Avenue, Suite 2900

Los Angeles, CA 90071-1514

Telephone: +1 213 457 8000

Facsimile: +1 213 457 8080

Attorneys for Defendant

Vector Marketing Corporation

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ALICIA HARRIS, as an individual and on 

behalf of all others similarly situated,

Plaintiffs,

vs.

VECTOR MARKETING 

CORPORATION, a Pennsylvania 

corporation; and DOES 1 through 20, 

inclusive,

Defendants.

No.: CV 08 5198 EMC

STIPULATED PROTECTIVE ORDER 

AND [PROPOSED] ORDER

Complaint Filed: October 15, 2008

Trial Date: June 6, 2011

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This stipulation is entered into by plaintiff Alicia Harris (“plaintiff”) and 

defendant Vector Marketing Corporation (“defendant”), as follows: 

1. GOOD CAUSE STATEMENT

Documents and information sought and exchanged in discovery in this 

action may contain, disclose or relate to confidential or sensitive personal, financial, 

business or commercial information of plaintiff, defendant, and members of the 

putative class, including, but not limited to, personal contact information, telephone 

records, and confidential and proprietary business plans and materials, such that the 

broad dissemination of information outside of this litigation could result in the 

unwarranted disclosure and use of personal contact information and confidential and 

sensitive information and may violate individual privacy rights. 

2. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve 

production of confidential, proprietary, or private information for which special 

protection from public disclosure and from use for any purpose other than prosecuting 

this litigation would be warranted. Accordingly, the parties hereby stipulate to and 

petition the court to enter the following Stipulated Protective Order. The parties 

acknowledge that this Order does not confer blanket protections on all disclosures or 

responses to discovery and that the protection it affords from public disclosure and use 

extends only to the limited information or items that are entitled under the applicable 

legal principles to treatment as confidential. The parties further acknowledge, as set 

forth in Section 13, below, that this Stipulated Protective Order creates no entitlement 

to file confidential information under seal; Civil Local Rule 79-5 sets forth the 

procedures that must be followed and reflects the standards that will be applied when 

a party seeks permission from the court to file material under seal.

3. DEFINITIONS

3.1 Party: any party to this action, including plaintiff Alicia Harris and 

defendant Vector Marketing Corporation, including all of her or its officers, directors, 

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employees, consultants, retained experts, and Outside Counsel of Record (and their 

support staff).

3.2 Non-Party: any natural person, partnership, corporation, 

association, or other legal entity not named as a Party to this action.

3.3 Disclosure or Discovery Material: all items or information,

regardless of the medium or manner generated, stored, or maintained (including, 

among other things, testimony, transcripts, or tangible things) that are produced or 

generated in disclosures or responses to discovery in this matter.

3.4 “CONFIDENTIAL” information or Items: information (regardless 

of how generated, stored or maintained) or tangible things that qualify for protection 

under standards developed under F.R.Civ.P. 26(c).

3.5 Receiving Party: a Party that receives Disclosure or Discovery 

Material from a Producing Party.

3.6 Producing Party: a Party or non-party that produces Disclosure or 

Discovery Material in this action.

3.7 Designating Party: a Party or non-party that designates 

information or items that it produces in disclosures or in responses to discovery as 

“CONFIDENTIAL.” 

3.8 Challenging Party: A Party or Non-Party that challenges the 

designation of information or items under this Order.

3.9 Protected Material: any Disclosure or Discovery Material that is 

designated as “CONFIDENTIAL.”

3.10 Outside Counsel of Record: attorneys who are not employees of a 

Party but who are retained to represent or advise a Party and have appeared in this 

action on behalf of that Party or are associated with a law firm which has appeared on 

behalf of that Party, including attorneys at the law firms of Diversity Law Group, Law 

Offices of Sherri Jung, Marlin & Saltzman, and Reed Smith.

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3.11 House Counsel: attorneys who are employees of a Party. House 

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

3.12 Counsel (without qualifier): Outside Counsel of Record and House 

Counsel (as well as their support staffs).

3.13 Expert: a person with specialized knowledge or experience in a 

matter pertinent to the litigation who has been retained by a Party or its counsel to 

serve as an expert witness or as a consultant in this action. 

3.14 Professional Vendors: persons or entities that provide litigation 

support services (e.g., photocopying; videotaping; translating; preparing exhibits or 

demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and 

their employees and subcontractors.

4. SCOPE

The protections conferred by this Stipulation and Order cover not only 

Protected Material (as defined above), but also any information copied or extracted 

therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus 

testimony, conversations, or presentations by parties or counsel to or in court or in 

other settings that might reveal Protected Material. However, the protections 

conferred by this Stipulation and Order do not cover the following information: (a) 

any information that at the time of disclosure to a Receiving Party is in the public 

domain or after its disclosure to a Receiving Party becomes part of the public domain 

as a result of publication not involving a violation of this Order; or (b) any 

information known to the Receiving Party prior to the disclosure or obtained by the 

Receiving Party after the disclosure from a source who obtained the information 

lawfully and under no obligation of confidentiality to the Designating Party. Any use 

of Protected Material at trial shall be governed by a separate agreement and/or order.

5. DURATION

Even after final disposition of this litigation, the confidentiality 

obligations imposed by this Order shall remain in effect until a Designating Party 

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agrees otherwise in writing or a court order otherwise directs. Final disposition shall 

be deemed to be the later of (1) dismissal of all claims and defenses in this action, 

with or without prejudice; or (2) final judgment herein after the completion and 

exhaustion all appeals, rehearings, remands, trials or reviews of this action, including 

the time limits for the filing of any motions or applications for extension of time 

pursuant to applicable law.

6. DESIGNATING PROTECTED MATERIAL

6.1 Exercise of Restraint and Care in Designating Material for 

Protection. Each Party or non-party that designates information or items for protection 

under this Order must take care to limit any such designation to specific material that 

qualifies under the appropriate standards. To the extent it is practical to do so, the 

Designating Party should designate for protection only those parts of material, 

documents, items, or 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 the ambit of this Order.

Mass, indiscriminate, or routinized designations are prohibited. 

Designations that are shown to be clearly unjustified, or that have been made for an 

improper purpose (e.g., to unnecessarily encumber or retard the case development 

process, or to impose unnecessary expenses and burdens on other parties), expose the 

Designating Party to sanctions.

If it comes to a Designating Party’s attention that information or items 

that it designated for protection do not qualify for protection do not qualify for 

protection, that Designating Party must promptly notify all other parties that it is 

withdrawing the mistaken designation.

6.2 Manner and Timing of Designations. Except as otherwise provided 

in this Order (see, e.g., second paragraph of section 6.2(a), below), or as otherwise 

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 

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under this Order must be clearly so designated before the material is disclosed or 

produced.

Designation in conformity with this Order requires:

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

documents but not transcripts of depositions or other pretrial or trial proceedings), that 

the Producing Party affix the legend “CONFIDENTIAL” to each page that contains 

protected material. If only a portion or portions of the material on a page qualifies for 

protection, the Producing Party also must clearly identify the protected portion(s) 

(e.g., by making appropriate markings in the margins) 

A Party or non-party that makes original documents or materials 

available for inspection need not designate them for protection until after the 

inspecting Party has indicated which material it would like copied and produced. 

During the inspection and before the designation, all of the material made available 

for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 

identified the documents it wants copied and produced, the Producing Party must 

determine which documents, or portions thereof, qualify for protection under this 

Order, then, before producing the specified documents, the Producing Party must affix 

the “CONFIDENTIAL” legend to each page that contains Protected Material. If only 

a portion or portions of the material on a page qualifies for protection, the Producing 

Party also must clearly identify the protected portion(s) (e.g., by making appropriate 

markings in the margins).

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

proceedings, that the Designating Party identify on the record, before the close of the 

deposition, hearing, or other proceeding, all protected testimony.

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

and for any other tangible items, that the Producing Party affix in a prominent place 

on the exterior of the container or containers in which information or item is stored the 

legend “CONFIDENTIAL.” If only portions of the information or item warrant 

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protection, the Producing Party, to the extent practicable, shall identify the protected 

portions.

6.3 Inadvertent Failures to Designate. If timely corrected, an 

inadvertent failure to designate qualified information or items does not, standing 

alone, waive the Designating Party’s right to secure protection under this Order for 

such material. Upon timely correction of a designation, the Receiving Party must 

make reasonable efforts to assure that the material is treated in accordance with the 

provisions of this Order.

7. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

designation of confidentiality at any time. Unless a prompt challenge to a Designating 

Party’s confidentiality designation is necessary to avoid foreseeable substantial 

unfairness, unnecessary economic burdens, or a later significant disruption or delay of 

the litigation, a Party does not waive its right to challenge a confidentiality designation 

by electing not to mount a challenge promptly after the original designation is 

disclosed.

7.2 Meet and Confer. The Challenging Party shall initiate the dispute 

resolution process by providing written notice of each designation it is challenging 

and describing the basis for each 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 according to this specific paragraph of the Protective 

Order. The parties shall attempt to resolve each challenge in good faith and must 

begin the process by conferring directly within fourteen days of the date of service of 

notice (in voice to voice dialogue; other forms of communication are not sufficient). 

In conferring, the Challenging Party must explain the basis for its belief that the

confidentiality designation was not proper and must give the Designating Party an 

opportunity to review the designated material, to reconsider the circumstances, and, if 

no change in designation is offered, to explain the basis for the chosen designation. A 

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Challenging Party may proceed to the next stage of the challenge process only if it has 

engaged in this meet and confer process first or establishes that the Designating Party 

is unwilling to participate in the meet and confer process in a timely manner.

7.3 Judicial Intervention. lf the Parties cannot resolve a challenge 

without court intervention, the Designating Party shall file and serve a motion under 

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) to 

retain confidentiality within 21 days of the initial notice of challenge or within 

fourteen days of the parties agreeing that the meet and confer process will not resolve 

their dispute. Each such motion must be accompanied by a competent declaration that 

affirms that the movant has complied with the meet and confer requirements imposed 

in the preceding paragraph. Failure by the Designating Party to make such a motion 

or to file such declaration within 21 days shall automatically waive the confidentiality 

designation for each challenged designation. Notwithstanding this provision, the 

Challenging Party may file a motion challenging a confidentiality designation at any 

time if there is good cause for doing so, including a challenge to the designation of a 

deposition transcript or any portions thereof. Any motion brought pursuant to this 

provision must be accompanied by a competent declaration affirming that the movant 

has complied with the meet and confer requirements imposed by the preceding 

paragraph.

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

the Designating Party. Frivolous challenges, or those made for an improper purpose 

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may 

expose the Challenging Party to sanctions. Until the court rules on the challenge, all 

parties shall continue to afford the material in question the level of protection to which 

it is entitled under the Producing Party’s designation.

8. ACCESS TO AND USE OF PROTECTED MATERIAL

8.1 Basic Principles. A Receiving Party may use Protected Material 

that is disclosed or produced by another Party or by a non-party in connection with 

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this case only for prosecuting, defending, or attempting to settle this litigation. Such 

Protected Material may be disclosed only to the categories of persons and under the 

conditions described in this Order. When the litigation has been terminated, a 

Receiving Party must comply with the provisions of section 15, below (FINAL 

DISPOSITION).

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

a location and in a secure manner that ensures that access is limited to the persons 

authorized under this Order.

8.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 

otherwise ordered by the court or permitted in writing by the Designating Party, a 

Receiving Party may disclose any information or item designated CONFIDENTIAL 

only to:

(a) The Receiving Party’s Outside Counsel of Record in this action, as 

well as employees of said Counsel to whom it is reasonably necessary to disclose the 

information for this litigation and who have signed the “Agreement to Be Bound by 

Protective Order” that is attached hereto as Exhibit A;

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

of the Receiving Party to whom disclosure is reasonably necessary for this litigation 

and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A);

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

disclosure is reasonably necessary for this litigation and who have signed the 

“Agreement to Be Bound by Protective Order” (Exhibit A);

(d) the Court and its personnel;

(e) court reporters, their staffs, professional jury or trial consultants, 

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary 

for this litigation and who have signed the “Agreement to Be Bound by Protective 

Order” (Exhibit A);

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

disclosure is reasonably necessary and who have signed the “Agreement to Be Bound 

by Protective Order” (Exhibit A). Pages of transcribed deposition testimony or 

exhibits to depositions that reveal Protected Material must be separately bound by the 

court reporter and may not be disclosed to anyone except as permitted under this 

Stipulated Protective Order.

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

a person who otherwise possessed or knew the information.

9. PROTECTED MATERIAL SUBPOENAED OR ORDERED 

PRODUCED IN OTHER LITIGATION

If a Receiving-Party is served with a subpoena or an order issued in other 

litigation that would compel disclosure of any information or items designated in this 

action as “CONFIDENTIAL” that Party must:

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

must include a copy of the subpoena or court order;

(b) promptly notify in writing the Party who caused the subpoena or 

order to issue in the other litigation that some or all the material covered by the 

subpoena or order is the subject of this Protective Order. Such notification shall 

include a copy of this Stipulated Protective Order; and

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

pursued by the Designating Party whose Protected Material may be affected.

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

with the subpoena or order shall not produce any information designated in this action 

as “CONFIDENTIAL” before a determination by the court from which the subpoena 

or order issued or obtaining the Designating Party’s permission. The Designating 

Party shall bear the burdens and the expenses of seeking protection in that court of its 

confidential material - and nothing in these provisions should be construed as 

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authorizing or encouraging a Receiving Party in this action to disobey a lawful 

directive from another court.

10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 

PRODUCED IN THIS LITIGATION

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

a non-party in this action and designated as “CONFIDENTIAL,” and such 

information produced by non-parties in connection with this litigation is protected by 

the remedies and relief provided by this Order. Nothing in these provisions should be 

construed as prohibiting a non-party from seeking additional protections.

(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 non-party not to produce the non-party’s confidential 

information, then the Party shall:

(1) promptly notify in writing the Requesting Party and the nonparty that some or all the confidential information requested is subject to the 

confidentiality rights of a non-party,

(2) promptly provide the non-party with a copy of the Stipulated 

Protective Order in this litigation, the relevant discovery request(s), and a reasonably 

particular description of the information requested; and

(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 fourteen days of receiving the notice and accompanying information, the 

Receiving Party may produce the non-party’s confidential information responsive to 

the discovery request. If the non-party timely seeks a protective order, the Receiving 

Party shall not produce any information in its possession or control that is subject to 

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the confidentiality rights of the non-party.1 Absent a Court order to the contrary, the 

Non-Party shall bear the burden and expense of seeking protection in this Court of its 

Protected Material.

11. 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, the Receiving Party must immediately (a) 

notify in writing the Designating Party of the unauthorized disclosures, (b) use its best 

efforts to retrieve all copies of the Protected Material, (c) inform the person or persons 

to whom unauthorized disclosures were made of all the terms of this Order, and (d) 

request such a person or persons to execute the “Acknowledgement and Agreement to 

Be Bound” that is attached hereto as Exhibit A.

12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 

PROTECTED MATERIAL

When a producing party gives notice to the other parties that certain 

inadvertently produced material is subject to a claim of privilege or other protection, 

the obligations of the parties that received such material are those set forth in Rule 

26(b)(5)(B) of the Federal Rules of Civil Procedure. This provision is not intended to 

modify whatever procedure may be established in an e-discovery order that provides 

for production without prior privilege review.

13. FILING PROTECTED MATERIAL

Without written permission from the Designating Party or a court order 

secured after appropriate notice to all interested persons, a Party may not file in the 

public record in this action any Protected Material. A Party that seeks to file under 

seal any Protected Material must comply with Civil Local Rule 79-5. Protected 

 

1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a non-party 

and to afford the interested parties an opportunity to protect their confidentiality interests in this Court.

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material may only be filed under seal pursuant to a Court order authorizing the sealing 

of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing 

order will issue only upon a request establishing that the Protected Material at issue is 

privileged or protectable as a trade secret or otherwise entitled to protection under the 

law.

14. MISCELLANEOUS

14.1 Right to Further Relief. Nothing in this Order abridges the right of 

any person to seek its modification by the Court in the future.

14.2 Right to Assert Other Objections. By stipulating to the entry of this 

Protective Order no Party waives any right it otherwise would have to object to 

disclosing or producing any information or item on any ground not addressed in this 

Stipulated Protective Order. Similarly, no Party waives any right to object on any 

ground to use in evidence of any of the material covered by this Protective Order.

15. FINAL DISPOSITION 

Within sixty days after the final disposition of this action, as defined in 

section 5, each Receiving Party must return all Protected Material to the Producing 

Party or destroy such material and provide written certification under oath of such 

destruction. As used in this subdivision, “all Protected Material” includes all copies, 

abstracts, compilations, summaries or any other form of reproducing or capturing any 

of the Protected Material. Whether the Protected Material is returned or destroyed, 

the Receiving Party must submit a written certification to the Producing Party (and, if 

not the same person or entity, to the Designating Party) by the sixty day deadline that 

identifies (by category, where appropriate) all the Protected Material that was returned 

or destroyed and that affirms that the Receiving Party has not retained any copies, 

abstracts, compilations, summaries or other forms of reproducing or capturing any of 

the Protected Material. Notwithstanding this provision, Counsel are entitled to retain 

an archival copy of all pleadings, motion papers, trial, deposition, and hearing 

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 

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reports, attorney work product and consultant and expert work product, even if such 

materials contain Protected Material. Any such archival copies that contain or 

constitute Protected Material remain subject to this Protective Order as set forth in 

Section 5 (DURATION), above.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: April 22, 2010 Marlin & Saltzman

By: /s/ 

Christina Humphrey

Attorneys for Plaintiff

Dated: April 22, 2010 REED SMITH, LLP

By: /s/ 

John P. Zaimes

Attorneys for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED:

Edward M. Chen

United States District Magistrate Judge

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STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER

US_ACTIVE-103300020

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 its entirety and understand the Stipulated Protective Order that was 

issued by the United States District Court for the Northern District of California on 

[date] in the case of _____________ [insert formal name of the case and the number 

and initials assigned to it by the court]. I agree to comply with and to be bound by all 

the terms of this Stipulated Protective Order and I understand and acknowledge that 

failure to so comply could expose me to sanctions and punishment in the nature of 

contempt. I solemnly promise that I will not disclose in any manner any information 

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.

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 Order, even if such enforcement proceedings occur after 

termination of this action.

I hereby appoint _______________________________ [print or type full 

name] of ______________________________________________[print or type full 

address and telephone number] as my California agent for service of process in 

connection with this action or any proceedings related to enforcement of this 

Stipulated Protective Order.

Date: __________________________________

City and State where sworn and signed:_________________________________

Printed name: __________________________

[printed name]

Signature: __________________________

[signature]

Case 3:08-cv-05198-EMC Document 164 Filed 04/30/10 Page 15 of 15