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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER 

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United States District Court 

Northern District of Californi

a

Anne M. Bevington (SBN 111320) 

abevington@sjlawcorp.com

Kimberly A. Hancock (SBN 205567) 

khancock@sjlawcorp.com

SALTZMAN & JOHNSON LAW CORPORATION 

44 Montgomery Street, Suite 2110 

San Francisco, CA 94104 

Telephone: (415) 882-7900 

Facsimile: (415) 882-9287 

Attorneys for Plaintiffs Automotive Industries Pension Trust Fund, 

and Trustees James H. Beno, Don Crosatto, Stephen J. Mack, James Schwantz, 

Doug Cornford, John DiBernardo, Jose Santana, and James Wells 

Robert F. Schwartz, No. 227327 

Clarissa A. Kang, No. 210660 

Jahiz Noel Agard, No. 282988 

TRUCKER  HUSS 

A Professional Corporation 

One Embarcadero Center, 12th Floor 

San Francisco, CA 94111 

Telephone: (415) 788-3111 

Facsimile: (415) 421-2017 

E-mail: rschwartz@truckerhuss.com 

ckang@truckerhuss.com 

 jagard@truckerhuss.com 

 

Attorneys for Defendants 

Mike Rose’s Auto Body, Inc., Washington 

Township Central Investment Co., William 

F. Brunelli, James R. Brunelli, Andrew M. 

Brunelli, Joan M Brunelli Devries, Barbara 

A. Brunelli Young, Richard R. Brunelli 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

(SAN FRANCISCO DIVISION) 

AUTOMOTIVE INDUSTRIES PENSION 

TRUST FUND, et al., 

Plaintiffs, 

v. 

MIKE ROSE’S AUTO BODY INC., a 

California corporation, et al. 

Defendants. 

 Case No.: Case No. 17-cv-00602 JST 

STIPULATED PROTECTIVE ORDER; 

[PROPOSED] ORDER 

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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER 

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1. 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 may 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 to confidential treatment under the 

applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that 

this Stipulated Protective Order does not entitle them to file confidential information under seal; 

Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be 

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

2. DEFINITIONS 

2.1 Challenging Party: a Party or Non-Party that challenges the designation of 

information or items under this Order. 

2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 

Civil Procedure 26(c). 

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 

as their support staff). 

2.4 Designating Party: a Party or Non-Party that designates information or items that it 

produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 

2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 

or manner in which it is generated, stored, or maintained (including, among other things, testimony, 

transcripts, and tangible things), that are produced or generated in disclosures or responses to 

discovery in this matter. 

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 

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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. 

2.7 House Counsel: attorneys who are employees of a party to this action. House 

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

2.8 Non-Party: any natural person, partnership, corporation, association, or other legal 

entity not named as a Party to this action. 

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action 

but are retained to represent or advise a party to this action and have appeared in this action on 

behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 

2.10 Party: any party to this action, including all of its officers, directors, employees, 

consultants, retained experts, and Outside Counsel of Record (and their support staffs). 

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 

Material in this action. 

2.12 Professional Vendors: persons or entities that provide litigation support services 

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 

storing, or retrieving data in any form or medium) and their employees and subcontractors. 

2.13 Protected Material: any Disclosure or Discovery Material that is designated as 

“CONFIDENTIAL.” 

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 

Producing Party. 

3. SCOPE 

The protections conferred by this Stipulation and Order cover not only Protected Material (as 

defined above), but also (1) any information copied or extracted from Protected Material; (2) all 

copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 

conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 

However, the protections conferred by this Stipulation and Order do not cover the following 

information: (a) any information that is in the public domain at the time of disclosure to a Receiving 

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

publication not involving a violation of this Order, including becoming part of the public record 

through trial or otherwise; and (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 or order. 

4. DURATION 

Even after final disposition of this litigation, the confidentiality obligations imposed by this 

Order shall remain in effect until a Designating Party 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; and (2) final judgment herein after the completion 

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

time limits for filing any motions or applications for extension of time pursuant to applicable law. 

5. DESIGNATING PROTECTED MATERIAL 

5.1 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. The 

Designating Party must 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, that Designating Party must promptly notify all other Parties 

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that it is withdrawing the mistaken designation. 

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 

Disclosure or Discovery Material that qualifies for protection 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 

excluding 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 the information or item is stored the legend “CONFIDENTIAL.” If only a 

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portion or portions of the information or item warrant protection, the Producing Party, to the extent 

practicable, shall identify the protected portion(s). 

5.3 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. 

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 

6.1 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 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. 

6.2 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 in accordance with 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 (in voice to voice dialogue; other forms of communication 

are not sufficient) within 14 days of the date of service of notice. 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 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. 

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6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 

intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 

Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 

initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 

will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 

competent declaration affirming 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 including the required declaration within 21 days (or 14 days, if applicable) shall 

automatically waive the confidentiality designation for each challenged designation. In addition, 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, and 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. 

Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 

retain confidentiality as described above, 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 until the court 

rules on the challenge. 

7. ACCESS TO AND USE OF PROTECTED MATERIAL 

7.1 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 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 13 below (FINAL 

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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. 

7.2 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 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 

this litigation; 

(b) the trustees, administrators, officers, directors, and employees (including House 

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

(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 “Acknowledgment and Agreement 

to Be Bound” (Exhibit A); 

(d) the court and its personnel; 

(e) court reporters and their staff; 

 (f) professional jury or trial consultants, mock jurors, and Professional Vendors to whom 

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

Agreement to Be Bound” (Exhibit A); 

(g) during their depositions, witnesses in the action to whom disclosure is reasonably 

necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 

unless otherwise agreed by the Designating Party or ordered by the court. 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; 

(h) the author or recipient of a document containing the information or a custodian or 

other person who otherwise possessed or knew the information; 

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(i) regulatory authorities to whom the Receiving Party is required by applicable law to 

make disclosure. 

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 

LITIGATION 

If a Party is served with a subpoena or a court order issued in other litigation that compels 

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 shall 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 of the material covered by the subpoena or order is subject to 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 court 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, unless the Party has 

obtained the Designating Party’s permission. The Designating Party shall bear the burden and 

expense of seeking protection in that court of its confidential material – and nothing in these 

provisions should be construed as authorizing or encouraging a Receiving Party in this action to 

disobey a lawful directive from another court. 

9. 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.” 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 

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protections. 

(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’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 Non-Party that some or 

all of the information requested is subject to a confidentiality agreement with 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 specific 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 14 

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 the confidentiality agreement with the Non-Party before a determination by 

the court. 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. 

10. 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 unauthorized 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 person or persons to execute the “Acknowledgment and Agreement to 

Be Bound” that is attached hereto as Exhibit A. 

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 

MATERIAL 

When a Producing Party gives notice to Receiving Parties that certain inadvertently produced 

material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 

are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 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. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 

parties reach an agreement on the effect of disclosure of a communication or information covered by 

the attorney-client privilege or work product protection, the parties may incorporate their agreement 

in the stipulated protective order submitted to the court. 

12. MISCELLANEOUS 

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 

its modification by the court in the future. 

12.2 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. 

12.3 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 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, protectable as a trade secret, or otherwise entitled to 

protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant 

to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information 

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in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 

13. FINAL DISPOSITION 

After the final disposition of this action, as defined in paragraph 4, within 60 days from 

receipt of a written request from the Producing Party, each Receiving Party must return all Protected 

Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected 

Material” includes all copies, abstracts, compilations, summaries, and any other format 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 60 day deadline that (1) identifies (by category, 

where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 

Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 

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 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 4 (DURATION). 

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

** SIGNATURES AND ORDER ON NEXT PAGE ** 

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Dated: June 16, 2017 

SALTZMAN & JOHNSON LAW CORPORATION 

By: /s/ Anne M. Bevington 

Anne M. Bevington 

Attorneys for Plaintiffs 

Dated: June 16, 2017 

TRUCKER  HUSS 

By:/s/ Clarissa A. Kang 

Clarissa A. Kang 

Attorneys for Defendants 

CERTIFICATION RE SIGNATURES 

I attest that concurrence in the filing of this document has been obtained from Clarissa A. 

Kang. 

Dated: June 16, 2017 /s/ Anne M. Bevington 

 ANNE M. BEVINGTON 

ORDER 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

DATED: June 18, 2017_______________ _____________________________________ 

Hon. Jon S. Tigar 

United States District Judge 

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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 Automotive Industries Pension Trust Fund et 

al. v. Mike Rose’s Auto Body, Inc. et al., Case No. 17-cv-00602 JST. 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: _______________________________ 

Signature: __________________________________ 

Case 3:17-cv-00602-JST Document 21 Filed 06/16/17 Page 14 of 14