Ortiz et al v. Spark Energy, LLC

Northern District of California, cand-4:2015-cv-02326

STIPULATED PROTECTIVE ORDER. Signed by Judge JEFFREY S. WHITE on 2/29/16.

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7 1 MILSTEIN ADELMAN, LLP Gillian L. Wade, State Bar No. 229124 2 gwade@milsteinadelman.com Sara Avila, State Bar No. 263213 3 savila@milsteinadelman.com 2800 Donald Douglas Loop North 4 Santa Monica, California 90405 Telephone: (310) 396-9600 5 Fax: (310) 396-9635 6 Attorneys for Plaintiffs, MARGARET SMITH and ARTURO AMAYA 7 and the Proposed Class 8 [additional counsel continued on next page] 9 UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 GABINO ORTIZ, ARTURO AMAYA, and Case No. 3:15-cv-02326-JSW BARBARA GEHRKE, 13 Plaintiffs, [PROPOSED] STIPULATED 14 PROTECTIVE ORDER v. 15 SPARK ENERGY GAS, LLC; SPARK 16 ENERGY GAS, L.P.; and DOES 1 through 100, inclusive, 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 BAKER & HOSTETLER LLP MICHAEL R. MATTHIAS, SBN: 57728 2 mmatthias@bakerlaw.com 11601 Wilshire Boulevard, Suite 1400 3 Los Angeles, California 90025-0509 Telephone: 310.820.8800 4 Facsimile: 310.820.8859 5 PAUL G. KARLSGODT (admitted pro hac vice) pkarlsgodt@bakerlaw.com 6 1801 California Street, #4400 Denver, Colorado 80202 7 Telephone: 303.764.4013 Facsimile: 303.861.7805 8 MICHELLE D. PECTOR (admitted pro hac vice) 9 mpector@bakerlaw.com JOSHUA C. THOMAS (admitted pro hac vice) 10 jthomas@bakerlaw.com 811 Main Street, #1100 11 Houston, Texas 77002 Telephone: 713.646.1326 12 Facsimile: 713.751.1717 13 Attorneys for Defendant SPARK ENERGY GAS, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 10 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 11 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 12 the standards that will be applied when a party seeks permission from the court to file material 13 under seal. 14 2. DEFINITIONS 15 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 20 2.3 Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as 21 well as their support staff). 22 2.4 Designated House Counsel: In-House Counsel who seek access to "HIGHLY 23 CONFIDENTIAL – ATTORNEYS' EYES ONLY" information in this matter. 24 2.5 Designating Party: a Party or Non-Party that designates information or items that it 25 produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 26 CONFIDENTIAL – ATTORNEYS' EYES ONLY." 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 2.6 Disclosure or Discovery Material: all items or information, regardless of the 2 medium or manner in which it is generated, stored, or maintained (including, among other things, 3 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 4 responses to discovery in this matter. 5 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 6 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 7 as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's 8 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 9 or of a Party's competitor. 10 2.8 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" Information or 11 Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 12 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 13 less restrictive means. 14 2.9 In-House Counsel: attorneys who are employees of a party to this action. In- 15 House Counsel does not include Outside Counsel of Record or any other outside counsel. 16 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 17 entity not named as a Party to this action. 18 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 19 action but are retained to represent or advise a party to this action and have appeared in this action 20 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 21 2.12 Party: any party to this action, including all of its officers, directors, employees, 22 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 23 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 24 Material in this action. 25 2.14 Professional Vendors: persons or entities that provide litigation support services 26 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 27 organizing, storing, or retrieving data in any form or medium) and their employees and 28 2 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 subcontractors. 2 2.15 Protected Material: any Disclosure or Discovery Material that is designated as 3 "CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY." 4 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a 5 Producing Party. 6 3. SCOPE 7 The protections conferred by this Stipulation and Order cover not only Protected Material 8 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 9 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 10 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 11 However, the protections conferred by this Stipulation and Order do not cover the following 12 information: (a) any information that is in the public domain at the time of disclosure to a 13 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 14 a result of publication not involving a violation of this Order, including becoming part of the 15 public record through trial or otherwise; and (b) any information known to the Receiving Party 16 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 17 obtained the information lawfully and under no obligation of confidentiality to the Designating 18 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 19 4. DURATION 20 Even after final disposition of this litigation, the confidentiality obligations imposed by 21 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 22 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 23 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 24 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 25 including the time limits for filing any motions or applications for extension of time pursuant to 26 applicable law. 27 28 3 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 3 or Non-Party that designates information or items for protection under this Order must take care 4 to limit any such designation to specific material that qualifies under the appropriate standards. 5 To the extent it is practical to do so, the Designating Party must designate for protection only 6 those parts of material, documents, items, or oral or written communications that qualify. 7 If it comes to a Designating Party's attention that information or items that it designated 8 for protection do not qualify for protection at all or do not qualify for the level of protection 9 initially asserted, that Designating Party must promptly notify all other parties that it is 10 withdrawing the mistaken designation. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 12 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 13 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 14 designated before the material is disclosed or produced. 15 Designation in conformity with this Order requires: 16 (a) for information in documentary form (e.g., paper or electronic documents, but 17 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 18 Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS' 19 EYES ONLY" to each page that contains protected material. If only a portion or portions of the 20 material on a page qualifies for protection, the Producing Party also must clearly identify the 21 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 22 each portion, the level of protection being asserted. A Party or Non-Party that makes original 23 documents or materials available for inspection need not designate them for protection until after 24 the inspecting Party has indicated which material it would like copied and produced. During the 25 inspection and before the designation, all of the material made available for inspection shall be 26 deemed "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY." After the inspecting 27 Party has identified the documents it wants copied and produced, the Producing Party must 28 4 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 determine which documents, or portions thereof, qualify for protection under this Order. Then, 2 before producing the specified documents, the Producing Party must affix the appropriate legend 3 ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" to each 4 page that contains Protected Material. If only a portion or portions of the material on a page 5 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 6 (e.g., by making appropriate markings in the margins) and must specify, for each portion, the 7 level of protection being asserted. 8 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 9 Designating Party identify on the record, before the close of the deposition, hearing, or other 10 proceeding, all protected testimony and specify the level of protection being asserted. When it is 11 impractical to identify separately each portion of testimony that is entitled to protection and it 12 appears that substantial portions of the testimony may qualify for protection, the Designating 13 Party shall have up to 21 days to identify the specific portions of the testimony as to which 14 protection is sought and to specify the level of protection being asserted. Only those portions of 15 the testimony that are appropriately designated for protection within the 21 days shall be covered 16 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 17 specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 18 entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – 19 ATTORNEYS' EYES ONLY." 20 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 21 other proceeding to include Protected Material so that the other parties can ensure that only 22 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 23 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 24 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY 25 CONFIDENTIAL – ATTORNEYS' EYES ONLY." 26 Transcripts containing Protected Material shall have an obvious legend on the title page 27 that the transcript contains Protected Material, and the title page shall be followed by a list of all 28 5 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 pages (including line numbers as appropriate) that have been designated as Protected Material and 2 the level of protection being asserted by the Designating Party. The Designating Party shall 3 inform the court reporter of these requirements. Any transcript that is prepared before the 4 expiration of a 21-day period for designation shall be treated during that period as if it had been 5 designated "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" in its entirety unless 6 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 7 actually designated. 8 (c) for information produced in some form other than documentary and for any other 9 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 10 or containers in which the information or item is stored the legend "CONFIDENTIAL" or 11 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY." If only a portion or portions of 12 the information or item warrant protection, the Producing Party, to the extent practicable, shall 13 identify the protected portion(s) and specify the level of protection being asserted. 14 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 15 designate qualified information or items does not, standing alone, waive the Designating Party's 16 right to secure protection under this Order for such material. Upon timely correction of a 17 designation, the Receiving Party must make reasonable efforts to assure that the material is 18 treated in accordance with the provisions of this Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 21 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 22 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 23 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 24 challenge a confidentiality designation by electing not to mount a challenge promptly after the 25 original designation is disclosed. 26 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 27 process by providing written notice of each designation it is challenging and describing the basis 28 6 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 2 notice must recite that the challenge to confidentiality is being made in accordance with this 3 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 4 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 5 forms of communication are not sufficient) within 14 days of the date of service of notice. In 6 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 7 designation was not proper and must give the Designating Party an opportunity to review the 8 designated material, to reconsider the circumstances, and, if no change in designation is offered, 9 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 10 stage of the challenge process only if it has engaged in this meet and confer process first or 11 establishes that the Designating Party is unwilling to participate in the meet and confer process in 12 a timely manner. 13 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 14 intervention, the Challenging Party may file a motion challenging a confidentiality designation at 15 any time if there is good cause for doing so, including a challenge to the designation of a 16 deposition transcript or any portions thereof. Any motion brought pursuant to this provision must 17 be accompanied by a competent declaration affirming that the movant has complied with the meet 18 and confer requirements imposed by the preceding paragraph. 19 The burden of persuasion in any such challenge proceeding shall be on the Designating 20 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 21 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 22 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 23 file a motion to retain confidentiality as described above, all parties shall continue to afford the 24 material in question the level of protection to which it is entitled under the Producing Party's 25 designation until the court rules on the challenge. 26 27 28 7 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 3 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 4 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 5 the categories of persons and under the conditions described in this Order. When the litigation has 6 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 7 DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a location and 9 in a secure manner that ensures that access is limited to the persons authorized under this Order. 10 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered 11 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 12 information or item designated "CONFIDENTIAL" only to: 13 (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees 14 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 15 for this litigation; 16 (b) the officers, directors, and employees (including In-House Counsel) of the Receiving 17 Party to whom disclosure is reasonably necessary for this litigation; 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary for this litigation and who have signed the "Acknowledgment and 20 Agreement to Be Bound" (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff; 23 (f) professional jury or trial consultants, and Professional Vendors to whom disclosure is 24 reasonably necessary for this litigation and who have signed the "Acknowledgment and 25 Agreement to Be Bound" (Exhibit A); 26 (g) during their depositions, witnesses in the action to whom disclosure is reasonably 27 necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), 28 8 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 2 deposition testimony or exhibits to depositions that reveal Protected Material may not be 3 disclosed to anyone except as permitted under this Stipulated Protective Order. 4 (h) the author or recipient of a document containing the information or a custodian or 5 other person who otherwise possessed or knew the information. 6 7.3 Disclosure of "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" 7 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 8 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 9 CONFIDENTIAL – ATTORNEYS' EYES ONLY" only to: 10 (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees 11 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 12 for this litigation; 13 (b) Designated In-House Counsel of the Receiving Party; 14 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 15 litigation, based upon whether the HIGHLY CONFIDENTIAL-ATTORNEY'S EYES ONLY 16 information relates to the expert's field of expertise and anticipated testimony; (2) who have 17 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) before reviewing any 18 HIGHLY CONFIDENTIAL‐ATTORNEYS' EYES ONLY information, the original of which 19 must be maintained by counsel for the Receiving Party, and made available to counsel for the 20 Producing Party within three (3) days after a conference satisfying Civil L.R. 37-1(a) has 21 occurred in anticipation of the Producing Party filing a motion to enforce the provisions of this 22 Stipulated Protective Order concerning disclosure of HIGHLY CONFIDENTIAL‐ATTORNEYS' 23 EYES ONLY information to experts; (3) but review of any HIGHLY CONFIDENTIAL- 24 ATTORNEYS' EYES ONLY information can only occur in the context of this lawsuit and no 25 copies of such information can be retained by any such experts or used in another proceeding; 26 (d) the court and its personnel; 27 (e) court reporters and their staff, 28 9 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 (f) professional jury or trial consultants, and Professional Vendors to whom disclosure is 2 reasonably necessary for this litigation and who have signed the "Acknowledgment and 3 Agreement to Be Bound" (Exhibit A); and 4 (g) the author or recipient of a document containing the information or a custodian or 5 other person who otherwise possessed or knew the information. 6 7.4 Counsel for the Receiving Party shall maintain copies of any signed 7 "Acknowledgment and Agreement to Be Bound" (Exhibit A) until sixty (60) days after the Final 8 Disposition of the action, in accordance with Paragraph 13. 9 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 10 LITIGATION 11 If a Party is served with a subpoena or a court order issued in other litigation that compels 12 disclosure of any information or items designated in this action as "CONFIDENTIAL" or 13 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" that Party must: 14 (a) promptly notify in writing the Designating Party. Such notification shall include a 15 copy of the subpoena or court order; 16 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 17 other litigation that some or all of the material covered by the subpoena or order is subject to this 18 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 19 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 20 Designating Party whose Protected Material may be affected. 21 If the Designating Party timely seeks a protective order, the Party served with the subpoena or 22 court order shall not produce any information designated in this action as "CONFIDENTIAL" or 23 "HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY" before a determination by the 24 court from which the subpoena or order issued, unless the Party has obtained the Designating 25 Party's permission. The Designating Party shall bear the burden and expense of seeking 26 protection in that court of its confidential material – and nothing in these provisions should be 27 construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 28 10 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 directive from another court. 2 9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 3 LITIGATION 4 (a) The terms of this Order are applicable to information produced by a Non-Party in 5 this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL – 6 ATTORNEYS' EYES ONLY." Such information produced by Non-Parties in connection with 7 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 8 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 9 (b) In the event that a Party is required, by a valid discovery request, to produce a 10 Non-Party's confidential information in its possession, and the Party is subject to an agreement 11 with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 12 1. promptly notify in writing the Requesting Party and the Non-Party that 13 some or all of the information requested is subject to a confidentiality agreement with a Non- 14 Party; 15 2. promptly provide the Non-Party with a copy of the Stipulated Protective 16 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 17 the information requested; and 18 3. make the information requested available for inspection by the Non-Party. 19 (c) If the Non-Party fails to object or seek a protective order from this court within 14 20 days of receiving the notice and accompanying information, the Receiving Party may produce the 21 Non-Party's confidential information responsive to the discovery request. If the Non-Party timely 22 seeks a protective order, the Receiving Party shall not produce any information in its possession 23 or control that is subject to the confidentiality agreement with the Non-Party before a 24 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 25 burden and expense of seeking protection in this court of its Protected Material. 26 27 28 11 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Stipulated Protective 4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 6 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 7 made of all the terms of this Order, and (d) request such person or persons to execute the 8 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 9 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 10 MATERIAL 11 When a Producing Party gives notice to Receiving Parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 14 provision is not intended to modify whatever procedure may be established in an e-discovery 15 order that provides for production without prior privilege review. Pursuant to Federal Rule of 16 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 17 communication or information covered by the attorney-client privilege or work product 18 protection, the parties may incorporate their agreement in the stipulated protective order 19 submitted to the court. 20 12. MISCELLANEOUS 21 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 22 seek its modification by the court in the future. 23 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 24 Order no Party waives any right it otherwise would have to object to disclosing or producing any 25 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 26 Party waives any right to object on any ground to use in evidence of any of the material covered 27 by this Protective Order. 28 12 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 12.3 Filing Protected Material. Without written permission from the Designating Party 2 or a court order secured after appropriate notice to all interested persons, a Party may not file in 3 the public record in this action any Protected Material unless such information belongs to the 4 Party. A Party that seeks to file under seal any Protected Material must comply with Civil Local 5 Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing 6 the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing 7 order will issue only upon a request establishing that the Protected Material at issue is privileged, 8 protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving 9 Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied 10 by the court, then the Receiving Party may file the Protected Material in the public record 11 pursuant to Civil Local Rule 79-5(e)(2) unless otherwise instructed by the court. 12 12.4 Nothing in this Order shall apply to a Party's use of their own Protected Material 13 for any purpose during the course of this Lawsuit. 14 13. FINAL DISPOSITION 15 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 16 Receiving Party must return all Protected Material to the Producing Party or destroy such 17 material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, 18 compilations, summaries, and any other format reproducing or capturing any of the Protected 19 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 20 submit a written certification to the Producing Party (and, if not the same person or entity, to the 21 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 22 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 23 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 24 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 25 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 26 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 27 product, and consultant and expert work product, even if such materials contain Protected 28 13 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 Material. Any such archival copies that contain or constitute Protected Material remain subject to 2 this Protective Order as set forth in Section 4 (DURATION). 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 6 DATED: February 25, 2016 /s/ Steven Weinmann Steven Weinmann 7 Attorneys for Plaintiffs 8 9 10 DATED: February 24, 2016 /s/ Michelle D. Pector Michelle D. Pector 11 Attorneys for Defendant Spark Energy Gas, LLC 12 13 PURSUANT TO STIPULATION, IT IS SO ORDERED. 14 15 February 29, 2016 DATED: ________________________ ___________________________________ HONORABLE JEFFREY S. WHITE 16 UNITED STATES DISTRICT COURT 17 18 19 20 21 22 23 24 25 26 27 28 14 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW 7 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on __________ [date] in the case of Gabino Ortiz, Arturo 7 Amaya, and Barbara Gehrke v. Spark Energy Gas, LLC, et al., Case No. 3:15-cv-02326-SBA. I 8 agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. 11 I solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict compliance with 13 the provisions of this Order. I further agree to submit to the jurisdiction of the United States 14 District Court for the Northern District of California for the purpose of enforcing the terms of this 15 Stipulated Protective Order, even if such enforcement proceedings occur after termination of this 16 action. 17 18 Date: _________________________________ 19 City and State where sworn and signed: _________________________________ 20 21 Printed name: ______________________________ [printed name] 22 23 Signature: __________________________________ 24 [signature] 25 26 27 28 15 [PROPOSED] STIPULATED PROTECTIVE ORDER 3:15-cv-02326-JSW