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STIPULATED PROTECTIVE ORDER

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Mark F. Anderson (SBN 44787)

Anderson, Ogilvie & Brewer LLP

1736 Stockton Street, Ground Floor

San Francisco, CA 94133

Phone: 415.65.1951

Email: mark@aoblawyers.com

Attorneys for Plaintiff Heather L. Chicoine

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Heather L. Chicoine,

Plaintiff,

v.

Pennsylvania Higher Education Assistance 

Agency,

Defendant.

Case No. 3:17-cv-00926 JST

[STIPULATED] PROTECTIVE 

ORDER

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

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).
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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 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 
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the completion and exhaustion of all appeals, re-hearings, 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 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 
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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 that contains confidential information, may be designated 

“CONFIDENTIAL” and thereby obtain the protections accorded other “CONFIDENTIAL” 

information.

(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 

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 
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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.

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 later. 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, 
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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 

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 and who have signed the;

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

(f) 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 covered in subparagraphs 7.2(a)-(e) or 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.

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

other person who otherwise possessed or knew the information.

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 
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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 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 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 
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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.

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, and nothing in this Protective Order shall be 

construed to prevent a Party from seeking such further provisions enhancing or limiting 

confidentiality as may be appropriate.
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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 in the public record pursuant to Civil Local Rule 79-5(e) 

unless otherwise instructed by the court.

12.4 Waiver. No action taken in accordance with this Protective Order shall be 

construed as a waiver of any claim or defense in the action or of any position as to discoverability 

or admissibility of evidence. Neither the entry of this Order nor the designation of any 

information as “Confidential,” nor the failure to make such designation, shall constitute evidence 

with respect to any issue in this action.

12.5 The Court retains the right to allow disclosure of any subject covered by this 

stipulation or to modify this stipulation at any time in the interest of justice.

13. FINAL DISPOSITION

Within 60 days after the final disposition of this action, as defined in paragraph 4, 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 
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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.

Dated: June 9, 2017 Anderson, Ogilvie & Brewer LLP

By: /s/ Mark F. Anderson

Mark F. Anderson

Counsel for Plaintiff

HEATHER L. CHICOINE

Dated: June 9, 2017 Donald E. Bradley

By: /s/ Donald E. Bradley

Musick Peeler & Garrett LLP

Counsel for Defendant

PENNSYLVANIA HIGHER EDUCATION 

ASSISTANCE AGENCY

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated:

____________________________

Judge of the United States District Court

June 13, 2017