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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

 

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Rex M. Clack, Esq. (CBN 059237) 

David E. Russo (CBN 112023) 

STERLING & CLACK 

A Professional Corporation 

101 Howard Street, Suite 400 

San Francisco, California 94105 

Telephone: (415) 543-5300 

Facsimile: (415) 543-3335 

Attorneys for Defendants 

OSHKOSH TRUCK CORPORATION 

and MCNEILUS TRUCK AND 

MANUFACTURING, INC. 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF CALIFORNIA 

SACRAMENTO DIVISION 

LAURA A. BERRY; JOSHUA N. BERRY, a 

Minor, by and through his Guardian ad Litem, 

LAURA A. BERRY; and NEIL W. BERRY, 

 Plaintiffs, 

vs. 

OSHKOSH TRUCK CORPORATION; 

MCNEILUS TRUCK AND 

MANUFACTURING, INC.; and DOES 1 

through 20, Inclusive, 

 Defendants. 

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Case No.: CIV.S-04-2701 DFL PAN 

STIPULATED PROTECTIVE ORDER 

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and in order to govern the 

production and use of information claimed to be a trade secret (California Evidence Code §1060; 

Rule 501, Federal Rules of Evidence) or otherwise confidential, Plaintiffs and Defendants, through 

their counsel of record, hereby stipulate to the following terms of a protective order. 

1. Scope of Order. This Order shall govern all documents produced and information 

supplied in any form in this case for purposes of discovery or otherwise, which have been 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

 

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designated as “CONFIDENTIAL”. When used in this Order, “documents” shall mean all written, 

recorded or graphic matter and any materials or tangible things, and shall include, without 

limitation, deposition transcripts, deposition exhibits and documents produced in this action by any 

party or non-party to the action. The use at trial of any material designated as “CONFIDENTIAL” 

shall be governed by a Pretrial Order to be entered subsequent to the completion of discovery. 

2. “CONFIDENTIAL”. For purposes of this Order, “CONFIDENTIAL” shall mean 

all documents and information, which are produced for or disclosed to a receiving party, which a 

producing party considers in good faith to constitute or contain trade secrets, proprietary 

information, confidential research and development and/or commercial information and which has 

been so designated by the producing party in the manner set forth hereafter. Only three copies of 

“CONFIDENTIAL” material shall be produced and the receiving party is prohibited from 

making copies thereof or otherwise reproducing such information in whole or in part in any 

manner whatsoever. Each copy (or set) shall be stamped in red ink with a separate number 

designating that copy or set, for example, “COPY NO. 1”, “COPY NO, 2”, and “COPY NO. 3”. If 

necessary, an additional copy may be obtained upon request to producing party’s counsel. 

3. Manner of Designation for “CONFIDENTIAL” Material. The designation of any 

documents as “CONFIDENTIAL” may be made by placing or affixing thereon (in such manner as 

will not interfere with the legibility thereof) the following notice: 

CONFIDENTIAL 

CONFIDENTIAL BUSINESS RECORDS OF ______________________ 

FOR USE IN CASE CIV.S-04-2701 ONLY 

MAY NOT BE COPIED OR REPRODUCED IN WHOLE 

OR IN PART IN ANY MANNER WHATSOEVER 

TO BE RETURNED TO _______________________________________ 

AT THE CONCLUSION OF THIS LITIGATION 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

 

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PER COURT ORDER DATED _______________________________ 

Documents to which such notice cannot be affixed may be designated as 

“CONFIDENTIAL” in any manner sufficient to give notice thereof. 

4. Procedures. 

 (a) Any party producing documents or otherwise supplying information may 

designate, subject to paragraph 3 of this Order, all or any portion or portions thereof as 

“CONFIDENTIAL” material. 

 (b) Any party producing or filing a document shall, at the time of production or 

filing, designate it as set out in paragraph 3. Deposition testimony shall be designated as 

“CONFIDENTIAL” during the course of a deposition. 

5. Objections to Designation. A party may object at any time to the designation of 

materials as “CONFIDENTIAL” by giving written notice to the party designating it as such. Such 

notice shall identify the material to which the objection is directed. The failure to object at any time 

shall not preclude a subsequent objection. If the parties are unable to resolve their differences 

within seven (7) days, the objecting party may file an appropriate motion requesting that the Court 

rule that the disputed material should not be treated as “CONFIDENTIAL” material under this 

Order. The disputed material shall remain “CONFIDENTIAL” material and subject to the terms 

of this Order until the Court has ruled on such motion. 

6. Use of “CONFIDENTIAL” Material. ALL PARTIES TO THIS ACTION 

(INCLUDING THEIR LEGAL COUNSEL AND EXPERTS) TO WHOM “CONFIDENTIAL” 

MATERIAL IS DISCLOSED OR PRODUCED PURSUANT TO THIS ORDER SHALL USE 

SUCH MATERIAL FOR PURPOSES OF THIS LITIGATION ONLY AND FOR NO OTHER 

PURPOSES. 

7. Disclosure of “CONFIDENTIAL” Material. “CONFIDENTIAL” material shall 

not be disclosed except to: 

(a) The Court or as authorized by the Court during hearings or trials. 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

 

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(b) Attorney of record for all parties (including only those employees of said 

legal counsel working on this case and having a need to see it). 

 (c) The parties, named witnesses or retained experts or consultants to whom, in 

the good faith judgment of the disclosing counsel, it is necessary for the purposes of preparation for 

and/or trial of this case to disclose “CONFIDENTIAL” material in connection with interviewing or 

conferring with such persons, provided, however, that prior to disclosure of “CONFIDENTIAL” 

material to persons designated in this subparagraph (c), all terms and conditions of paragraph 8 of 

this Order are fully complied with. 

 (d) Any mediators, arbitrators or court reporters in the instant case shall be allowed 

to see “CONFIDENTIAL” material; however, no copies of the “CONFIDENTIAL” material shall 

be given to or left with any mediators, arbitrators, or court reporters without the express permission 

or agreement of the producing party or it’s attorneys, or by court Order. 

8. Written Acknowledgments. No “CONFIDENTIAL” material shall be disclosed to 

any person described in subparagraph 7(c) hereof unless such person acknowledges in writing as set 

forth on Exhibit “A” that he/she has received a copy of this Order and agrees to be bound by its 

terms and submits to the court’s jurisdiction for the purpose of enforcement of this Order. Each 

such original written acknowledgment shall be delivered to and retained by the legal counsel 

(receiving party’s counsel) disclosing the “CONFIDENTIAL” material. Counsel for the receiving 

party shall be responsible to ensure compliance with this paragraph. 

9. Court Documents to be Filed Under Seal. To the extent that pleadings, motion 

papers, memoranda of law, transcripts of depositions, and any exhibits to said pleadings, motion 

papers, memoranda of law, or transcripts or depositions incorporate documents or information 

designated as “CONFIDENTIAL” material, then such court filings or transcripts or exhibits, to the 

extent they contain “CONFIDENTIAL” material shall be filed under seal subject to further order 

of the Court. 

10. Limitation on the Use of Confidential Information. Information or material 

designated “CONFIDENTIAL” shall be held in strict confidence by each person to whom it is 

disclosed, shall be used only in and for the purposes of this action, shall not be used for any 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

 

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business purpose, and shall not be disclosed to any person who is not entitled to receive such 

information as herein provided. All produced information or materials designated 

“CONFIDENTIAL” shall be carefully maintained so as to preclude access by persons who are not 

entitled to receive such information. 

11. Modification of Order. This Order may be modified by further written stipulation 

signed by the undersigned attorneys, or by further order of the Court. Nothing in this Order shall be 

deemed to preclude any party from seeking a modification of this Order, to include, but not limited 

to, any additional protective terms or conditions that a party may believe in good faith to be 

appropriate or necessary. 

12. Obligation to return “CONFIDENTIAL” Materials. The attorney for any party 

receiving “CONFIDENTIAL” material is required to return all “CONFIDENTIAL” material 

upon termination of this litigation to the attorney for the party who produced it and the attorney for 

the party returning said “CONFIDENTIAL” material shall certify by Affidavit that he or she has 

returned all copies. All such “CONFIDENTIAL” material [i.e., all original stamped numbered 

copies (or sets)] shall be returned to producing party’s counsel not later than thirty (30) days after 

conclusion of this litigation. The originals of all written acknowledgments executed in compliance 

with paragraph 8 of this Order shall also be provided to said counsel at that time. The attorney for 

the returning party shall certify in his or her Affidavit required by this paragraph that he or she is 

enclosing an original written acknowledgment for each person referred to in paragraph 7(c) of this 

Order. 

13. No Admissions. Neither this Order nor the designation of any material as 

“CONFIDENTIAL” shall be construed as an admission that such material, or any testimony 

relating to such material, in a deposition or at trial, would be admissible in evidence in this cause or 

in any proceeding. 

// 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

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14. Nothing contained in this Order shall be construed as shifting any of the burdens of 

proof of any party with respect to any dispute over the applicability of a privilege to any particular 

document produced pursuant to this Order. 

SO STIPULATED: 

STERLING & CLACK 

Dated: 1/9/06 By: ____s/Rex M. Clack________ 

 Rex M. Clack 

 Attorneys for Defendants 

 OSHKOSH TRUCK CORPORATION and 

MCNEILUS TRUCK AND 

MANUFACTURING, INC. 

030103/P/Protective Order 

Dated: BARR & MUDFORD 

By: ___s/Dugan Barr________________ 

Dugan Barr 

Attorney for Plaintiffs 

LAURA A. BERRY; JOSHUA N. BERRY, a 

Minor, by and through his Guardian ad Litem, 

LAURA A. BERRY; and NEIL W. BER 

Dated: 12/22/05 LAUGHLIN, FALBO, LEVY & MORESI 

By: ____s/James B. Knezovich________ 

James B. Knezovich, Esq. 

Attorney for Lien Claimant 

FIDELITY & GUARANTEE INS. CO. 

Rex M. Clack attests that concurrence in the filing of this document has been obtained from each of 

the other signatories herein 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

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ORDER

Having reviewed and considered the party’s stipulation to a protective order above, and 

finding good cause for its entry, this Protective Order is hereby made and entered. However, the 

court makes the following amendment: no document may be filed under seal unless the court so 

orders. Therefore, if a document is confidential, the party who seeks to file the document must 

make a motion to seal the document. The motion to seal must demonstrate that the entire document 

is confidential; otherwise the court will order a redacted copy filed in the public record. DONE and 

ORDERED in Chambers at the Eastern District of California, Sacramento this 13 day of January, 

2006. 

______________________________ 

DAVID F. LEVI 

United States District Judge

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

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Rex M. Clack, Esq. (CBN 059237) 

David E. Russo (CBN 112023) 

STERLING & CLACK 

A Professional Corporation 

101 Howard Street, Suite 400 

San Francisco, California 94105 

Telephone: (415) 543-5300 

Facsimile: (415) 543-3335 

Attorneys for Defendants 

OSHKOSH TRUCK CORPORATION 

and MCNEILUS TRUCK AND 

MANUFACTURING, INC. 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF CALIFORNIA 

SACRAMENTO DIVISION 

LAURA A. BERRY; JOSHUA N. BERRY, a 

Minor, by and through his Guardian ad Litem, 

LAURA A. BERRY; and NEIL W. BERRY, 

 Plaintiffs, 

vs. 

OSHKOSH TRUCK CORPORATION; 

MCNEILUS TRUCK AND 

MANUFACTURING, INC.; and DOES 1 

through 20, Inclusive, 

 Defendants. 

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) 

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Case No.: CIV.S-04-2701 DFL PAN 

AFFIDAVIT AND AGREEMENT TO BE 

BOUND BY TERMS OF THE 

PROTECTIVE ORDER 

KNOW ALL MEN BY THESE PRESENTS:

The undersigned, being first duly sworn, stated under oath as follows: 

1. I have been requested to inspect certain material which has been designated 

“CONFIDENTIAL” within the terms of the Protective Order in the above-captioned case, for 

purposes of assisting counsel to prepare for the trial of the above-captioned matter. 

// 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

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2. I have read the Protective Order and I understand the terms therein. I hereby agree to 

be bound by that Order. That for the purposes of enforcing the Protective Order, I hereby submit to 

the personal jurisdiction of the court captioned above. 

3. I hereby agree that I will not disclose the contents of any “CONFIDENTIAL” 

material to any person other than those persons authorized by paragraph 7 to have access to that 

material and who have agreed in writing to be bound by the Protective Order, and I will hold such 

“CONFIDENTIAL” material in strict confidence pursuant to the terms of the Protective Order. 

4. I agree that I will not copy or reproduce any documents designated as 

“CONFIDENTIAL”. I will hold such “CONFIDENTIAL” material in strict confidence pursuant 

to the terms of the Protective Order. 

5. I hereby agree that at the completion of my function in connection with the abovecaptioned matter, all “CONFIDENTIAL” material received by me will be returned to the person 

from whom I received it. 

 __________________________________ 

Name:_____________________________ 

 Title:______________________________ 

 Date:______________________________ 

STATE OF _____________________ ) 

 ) ss: 

COUNTY OF ___________________ ) 

BEFORE ME, the undersigned authority, this day personally appeared 

___________________________________, who is (personally known to me) (or who as produced) 

deposes and says that he/she has read the aforegoing Affidavit and Agreement to be bound by 

Terms of the Protective Order. 

// 

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STIPULATED PROTECTIVE ORDER Case No. CIV.S-04-2701 DFL PAN 

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SWORN and SUBSCRIBED to me before me this ________ day of 

________________________, 2005. 

 

 Signature:_________________________________ 

 

 NOTARY PUBLIC, State of __________________ 

 AT LARGE 

 Name: 

 Title: 

 Serial No.: 

 My Commission Expires: 

030103/P/AFFIDAVIT PROTECTIVE ORDER 

 

 

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