Free Motion for Protective Order - District Court of California - California

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 1 of 13

SEYFARTH SHAW LLP Samuel T. McAdam (SBN 186084) 2 Brandon R. McKelvey (SBN 217002) Anthony J. Musate (SBN 252097) Mall, 3 400 Capitol Suite 2350

Sacramento, Californa. 958144428
4 Telephone: (916)

Facsimile: (916) 558'-839
5

44S.,0159

Attorneys for Defendants 6 SPHERION A TLANTICENTERPRISESLLC
7 8

UNITED ST AIES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA
) Case

i 0 PHILIP J.JvfAR.TINET, in~ividiilly,Qn
i 1 BehalfofJ\iiPth.,~s. S.Ì.rrilarIY.,.S.. ituated,and

No. 07 CV 2178 W(AJB)

on BehalfoftheGeneràlPtibHc,
Plaintiff,
v.

)
) ) )

))iEÇLi\TJ9NOliJOEL',SCIILLY IN

12
13

S~lr9.Rt,..Qll,.l.ErENDA.NT S'RREm~~A:TtÃNTlCENl'EltPRlSES

)

LLCZ~S"M()Tl()N'F()lAPROTECTlVE ) O.R'ERiplJRS'tAN~TO FRCP26(è)
)
)
)

14 SPHERION A TLANTlC ENTERPRISES

15 LLC,aDelawateLirritedLiabilitY Company; and DOES 1 through 50,
16
i7

inclusive,
Defendant.

) ) )
) )

Date: May 16,2008 Time: 10:QQam Courtrooß1: A- FirsfFI()or

Judge:

Hon. Anthony J. Ba,ttgla

18 I; JdelScull;y, declare;
19
1.

ram a$eniørSa1sExecutivein Austin, Texas f6rTechnisource, a wholly owned
this

20 subsidiary of Sphen()I1 Atlantìc Enterprises, Li.C ("Spheiion"), defendant in

case. Lhave

21 personal knowledge

of

the facts set forth in this declaration and if called as a witness, I would

22 and could

testify to thetruthofthese matters.
2.

23

I amemplòyêdhy theentit~fomiè:iy known as SpheronProfessiona Serce
by tnecompany for
an

24 Group ("PSG"), and nowknownasTechnisotIce. Ihave been employed

25

over 2 years. lcurrentlysei'eastheSeniorSatesExecutiveforPt:l1 and am

ACCount

26 Manager on

specific projects. I waS theAccountMaiager on Dell Very Small Site Deployment.

27 Navy Mårne Corpslntranet ("VSSD"NMCI")prøjëct, and I oversaw this acco'Unt. whHe
28PlaintiffPhiHpMarinet worked on it

during his employment with Spherion. This project
Marketing LoP.,

servced Sphenön'sclIent. Dell

and Dell's customer Electronic.Data Systems

DECLARATION

OF J.SCULLYlNSUPl'RTOF DEfENPANT'SMOtION FOR. A PROTECIVE ORDER

sei 17092523" 134991~;2.2

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 2 of 13

I ("EDS"). As Account Manager, I wórkedwith Dell personneL. on creating an agreeent

between

2 DeIlandSpherion, and once

the project was underway (served as

liaison between Dell and

3 Spheron.
4
5

3.
paricular project

Spheron PSGrecritedplaintiff out of its

branch offce in San Diego. This

required that

I

reach out to Spheron'slocal SåIDiego offce to recrit

6 employees to staff the cohtract, Thisptoject inìtîaHygrew out of Dell's need for on-site
7 techncians to servce accouttsthat Dell had with Ítscustomers. The project

was par öfDells

8 Managed Servces Division. Dell's Managed

Serices Division

provides a varety of managed

9 services to its ,customers. Plaintiff was recruited as 'ape Techncian to provide on-site tec:hncal
i 0 assistance at

various sites throughout the couttrý. . His unique position was par of a larger
deployment utilizing traveling pC Technicians. Thisparticulat project required

1 1 national

the

12 installation

and de4nstatlation of

Dell desktops units at varous

Navy Marie Recruiting Centers.

13 Spherion receívedthísprojectthoughits.previouslY4eve1operèlationship with Den.

14

4.

Deploymen.t on the

project began

on July 9,ZÖ07. Attliattime Spherion and Dell
their

15 memorializedtheiragreement in.

an. addendum to

general service agreement lam generally

16 familar with this addendumbècauSe i negotiated it on behalfof Spherion and in conjunction
17 with a representative from Den. Attched hereto as Exhìbit A is a troeandcorrectCupy of

the

18 addendum to thegenera1~ices a.greement.
19

5.

Underthèa.d,(iendu01 .Spherionptovid~.a1Iumberpfteçhnic:a:s~ in(:lutling

20plåìntifE. to Dell ãfdEDS. The teclmicians wetetÓpetoii instållation servces 'at Navy Marne
2 i Recruiting Sta:tionsthro1,ghpU,t the U.s. thatED$servced. Plaintiff was one of

those

22 technicians

tesponsiblefot

setting.upandtrouhleshooting the

computer hardware and softare

23 used at varousrecruitingstatíons.
24
6.

Plaintiffsproject and job duties were unique. There were only 8 employees who
project,

25 worked.astravèlingPC technicians supportng this

and only 4 were based out of

26 California. Plus,eaêhofthe PC

Techncians staff~on this projec were required, as a term of
have secret clearance

27 the addendU:, to

in order tog~iIlaccess to the militarbas~s where they

28 worked. I am not aware or

any otherSpherion employees who worked in a simlar capacity.
2

DEci.R.AII()!\pFJ,SCUI.YIN SUI'POltl'OF DEFENDANT'S MOTION FOR A PROTECTl'vEORDER

sci170925i3.1134991'002~2 CaseNo:.07 CV 2178 W (AJ)

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 3 of 13

1

7.

Whileplaintiffwasenployed asa PGTechnic~an with Spheron. Den and EDS

2 were responsible for coordînating his actIvitieson the VSSD-NMCI project As par ofhisjob
3 duties, PlaÌntiffwas required to travel all oyer the country. Plaintiff worked at Navy

Marne
not under the

4 Recruiter Stations in various cites under the direction of Dell and EDS and was

5 day-to-day supersion of Spheron or me.

6
7
8
servcing

8.

After working for approximately less than two months as a PC Technician,
Dell computertermInalsÎnNavy and MMinerecruitingcenters, Plaintiffquít his job

with SPlierion.
I declare under penalty of pe:uryunder the

9
10
11

foregoing is trueâ1d correct. Executed onApril

i'1 2008, in . s~. , Texas.

, '-- It
of the

laws

State of California that

the

12
13

'" £1 ~
Õ Joel . .lly ..

14
15

16
17 18
19

20
21

22
23

24
25 26
27

28
3
DECLAItTIÖNOFJ. SCULLY IN SUPPORT OF DEFENDANT'S MOTION FOR A. PROTEctIVE ORDER

sei 17092523;1/34991 .ø232 Case No.07CV 2118 W (AlB)

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 4 of 13

Exhibit A

4

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 5 of 13

Dell I Services

Dell Marketi ng USA L. P.

Spherion Atlantic Enterprises LLC

o
..,
Dell Marketing USA L.P. One Dell Way

Round Rock, TX 78682 (800) 274-3355 Fax (800) 333-4329

http://ww.dell.com

5

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 6 of 13

Table of Contents

T of C to match the end state document

Contents

Paçie

1. SCOPE OF SERVICES .... ................................ ............................ ............................. 3

2. RESPONSiBILITIES.......... ................................ ............. ........ ................................... 3
Dell Responsi bi I ¡ties......................... ...................................................................................................... 3

3. MANAGED DEPLOYMENT SERVICES .................................................................. 4
Pre-Deploym ent Activities.. .......... ................ ............ ................ ........... Error! Bookm ark not defined.
Sched u les .. .............. ........ ........... ....... ... ............... ...... ............................. ...... ............. .......... ....... ......... ....4

Deployment Services.............................................................................................................................. 4

4. PRIC I NG . ........... ..................... .............. ........................ ........ ............. ........................ 4 )
5. CHANGE MANAGEMENT PROCESS ...................................................................... 6

6. GENERAL .................................................................................................................6
DE LL I SERViCES............ ......... .......................................... ............................ ............... 8

APPENDIX B - CHANGE REQUEST FORM ................................................................ 8 APPENDIX C - CUSTOMER SITES AND SCHEDULE ................................................ 9

6

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 7 of 13

1. Scope of Services

This Addendum shall be performed pursuant to the terms and condition of the Dell/Spherion Staff Augmentation Statement of Work dated February 20, 2007 between Spherion Atlantic Enterprises LLC (acting as Dell's staffing "Provider") and Dell Marketing L.P ("Dell". This addendum describes the managed deployment services to be provided by Spherion to Dell's customer Electronic Data

Systems EDS ("Customer"). The term of this addendum shall begin on or around July 2, 2007 and
end on or around July 2, 2008 or (ii) and when are complete and Customer has indicated acceptance and completion of services at all scheduled sites or as terminated as provided in this addendum.
The scope of Provider's services is to supply eight (8) "dedicated" entry level contractor technicians (traveling team) with secret clearances as follows: Camp Lejeune, Jacksonville NC area (1) NCR, Washington, DC. (1) Tidewater, Norfolk, Va.(1) New Orleans, La. (1) San, Diego, Ca. (4)

In addition, local deployment technician resources without secret clearances may be requested by the

Customer on an As-Needed basis. This addendum sets forth the resource structure agreed between
the Provider and Dell in support of the Customer.

2. Responsibilities

Dell and Spherion will each assign a Staffing Manager who will coordinate the activities to be
performed under this addendum ("Staffing Manager"). The Staffing Manager for each party will serve any modification to the scope, requirements, or as the point-of-contact for all communications and

responsibiliies under this addendum.
Dell Responsibilities
Dell will perform the following activities: Serve as central point of contact for all staffng issues. Conduct meetings to communicate roles, responsibilities, and schedule activities. Provide daily timesheets and weekly invoices for approval by the Customer.

Manage issue escalation process. Collection of performance metric data.
Procurement of skilled technical deployment resources.

Proper training and orientation of deployment resources.
Consistent schedule updates in the web based reporting tool. Technician contact information for each site scheduled.

Provider's Responsibilties
Provider shall be responsible for the following: Pre-screen resources for appropriate background and technical expertise as defined in the

Staff Augmentation SOW. Perform a face-to-face screening of the resource.
Ensure that resources take DMS Soft-Skills Certification prior to performing services. Ensure timely arrival of assigned resources at the service location. Managing day to day HR related issues (including, but not limited to escalations, performance issues, etc.). Responding to escalations originating from Dell concerning the provided resources.

7

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 8 of 13

Ensuring timecards are created and reviewed prior to submission to DelL. Submission of invoices for the prior week's approved billable hours and expenses. Equipment issued by Dell for use on Dell projects. Should this equipment be damaged, lost or

stolen, it will be provider's responsibility to replace it. Replacement equipment must be identical to the previously issued model, brand or type. Equipment is for business purposes
only.

3. Manaçied Deployment Services

Spherion will provide technical resources who will perform Services for the Customer sites identified

in Appendix C. These Services will be performed Monday through Thursday, 8:00 a.m. to 5:00 p.m.
local time with Friday as an optional service day (excluding nationally-observed holidays) based on a forty (40) hour week ("Service Hours"). Services performed outside the Service Hours will be mutually agreed in writing and subject to additional fees.

3.1.1. Technician Readiness

Dell will conduct technician readiness call each Friday in advance in order to gauge the
technician preparedness and coordinate activities for the deployment resource.

Schedules
EDS and Dell will mutually agree to a deployment schedule and group of end users that make up each schedule group ("Schedule Group"). The deployment schedule will be distributed by the Customer to end-users identified in each Schedule Group prior to the scheduled installation of their systems. Dell will promptly notify Spherion in order to lock the schedule at least 10 business days prior to the scheduled installation date. Any modifications or cancellations occurring within ONE business day prior to the scheduled installation date will be subject to additional fees.

However, Dell will exhaust all contingency plans in an effort to mitigate such fees. If all
contingency plans have been exhausted, Dell will initiate a change request process.

Deployment Services
Spherion will complete the deployment activities listed below as part of the Services. All technical manuals and processes will be provided by EDS at least 5 business days prior to deployment.

3.2.1 Staging new systems
. Receiving new systems in staging area.

. Unpacking new systems from shipping boxes and inspecting components for any damage.
. Verifying service tag for each new system against packing slip.

. Escalating any discrepancy or damage regarding the shipment of Dell equipment.

. Organize system components and peripherals (e.g., keyboards, power supplies, mice, and
software) for deployment.

4. Pricinçi

Dedicated Resource Pricing
Dedicated Resources will be identified by Dell/Spherion. Initially, Spherion will assign eight (8) resources and make best effort to supply those resources from desired geographical areas. These resources will be deployed every week. They will travel to the designated locations during VSSD active deployment weeks and to other refresh deployments during VSSD down weeks.

8

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 9 of 13

Activity to be Performed
DEPLOYMENT HOURS

Hourly Price
Camp Lejeune, Jacksonville NC ($29) NCR, Washington DC ($29) San Diego, Ca ($29) New Orleans, La. ($30) Tidewat13r($30) . Covered by EDS per EDS Travel

TRAVEL

Agreement
CANCELLATIONS (day of deployment)

---I $100/resource

CANCELLATIONS (day prior to deployment)

'i No fee

Notes:
1, All travel costs pertaining to dedicated resources are covered by EDS

o In the performance of Project Activities and with the prior written approval of the Dell Project Manager, the Provider shall be reimbursed for all ordinary, necessary, reasonable and actual travel expenses incurred by the

consultant resource(s).
o Provider must collect and retain original receipts from Resources for transmittal to Dell as may be required.
o All approved travel expenses shall be passed through Provider to Dell with no additional costs added.
2. Overtime obligations under the Fair Labor Standards Act (FLSA) and any applicable state and local

law will apply

3. A minimum charge of 28 hours (70%) per technician will be applied in cases where the on site deployment labor
hours are less than 28. 4. Travel hours cannot be used to accumulate Overtime hours. Approved travel hours will be reimbursed at the regular

straight time rate.
5. Security Clearance is required.

As Needed Resource Pricing
As Needed Resources will be identified by EDS on an ongoing basis.

Activity to be Performed
DEPLOYMENT HOURS
TRAVEL
Covered under Staff Augmentation

SOW
Covered by EDS per EDS Travel

Agreement
CANCELLATIONS (day -- . - - -,"~'..' ..,of"deployment) .'-'.'

I $100/resource

CANCELLATIONS (day prior to deployment)

.:1 No fee

Notes:
1. All travel costs pertaining to dedicated resources are covered by EDS
. In the performance of Project Activities and with the prior written approval of the Dell Project Manager, the

Provider shall be reimbursed for all ordinary, necessary, reasonable and actual travel expenses incurred by the

consultant resource(s). Provider must collect and retain original receipts from Resources for transmittal to Dell as may be required.
. All approved travel expenses shall be passed through Provider to Dell with no additional costs added.
2. Overtime obligations under the Fair Labor Standards Act (FLSA) and any applicable state and local

law will apply

3. A minimum charge of 28 hours (70%) per technician will be applied in cases where the on site deployment labor
hours are less than 28. 4. Travel hours cannot be used to accumulate Overtime hours. Approved travel hours will be reimbursed at the regular straight time rate.
5. Security Clearance is required

9

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 10 of 13

Pricing excludes any services not specified in this SOW, including but not limited to the following:

. Procurement of hardware, software, or other equipment required for the Services. . Packaging software applications for installation.
. Providing end user orientation or training.

. Post-installation support.

. Transporting equipment between buildings or between Customer sites, or moving equipment

between floors without the use of elevators.
. Shipping,or disposing of legacy systems unless otherwise stated in the SOW.
. Shipping of any hardware, software, or any materials required for the services.

. Removing viruses (Dell will, however, promptly notify the Customer site coordinator upon
discovery of any virus).
. Disaster recovery, including but not limited to: re-imaging, reloading software applications or

recovering backup data.
. Warranty services or remedial hardware maintenance or software maintenance.

. Warranty services for third party products which are not provided by DelL.
5. Chan~e Mana~ement Process

When Dell or Spherion determines that a change is necessary to refine a process, procedure, or specific responsibility identified in this addendum, the party proposing the change will document the
request using the change request form provided in appendix B.

The receiving party will review the proposed Change Request and determine whether the change is acceptable or requires modifications. Both parties will review the proposed Change Request and will

When the parties agree to the change, they will sign the Change Request, which upon signing by
both parties will constitute authorization to implement the change.

(i) approve it, (ii) agree to further investigation, or (iii) reject it ("Change Management Process").

6. General

Dell has the right to terminate this addendum without charge or penalty to Dell if Spherion (1) fails to materially perform any of the services identified in this addendum; (2) fails to meet any of the SLAs

defined in the SOW, provided such failure is not caused in whole or in part either by actions, or

failures to act, on the part of EDS or the government; and (3) has made any incorrect assumptions
that lead to missed SLAs and such incorrect assumptions have not been resolved in accordance with paragraph 3 above.

IN WITNESS WHEREOF, Dell and Spherion have caused this addendum to be signed and delivered by their duly authorized representatives as of the date of last signature below (the "Effective Date").

Spherion Atlantic Enterprises LLC
By:

Dell Marketing.

By:

Printed Name:
Title:

Printed Name:
Title:

Date:

Date:

Page 6

Dell/Spherion Managed Deployment SOW

10

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 11 of 13

Page 7

Dell/Spherion Managed Deployment SOW

11

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 12 of 13

Delli Services
Appendix B - Change Request Form

Dell-Customer
ciï:èiijNårnê'i:,,/

Dell-Vendor

(there must be a name in this field)

êhár~è'y"." (there must be a name in this field)
'l'êlll,ager;":'¡\r:

".
.Total Còst of thls" $

. Change '.J
:¡/:.(';:'~:"

;;'S~tgbT~N~,~~!: r't~,~~~~~~~.

date

.d\,~REVISíÓNSTÓSiJGGESTEÔ;jCftÃNGEÓR'RÈÄs,6N.ÉÓR;R:ÊjEêTION'ÄNl:fNÊX,.S,.EPS"','.' ....,., .'
. :":-',.. ~ ,-::' :. '.. ' ,.... ;. c. : ;",;':' _.. .. _, ';'.~ ' ..: - .-",'. ~" C," .. ,: .. .': ;... ;' _ .., - - _:: ' :., ,'.: .." '..: .. ,/ .. _;.... .. :.: . _ ,':_ .. ~.:- '-, ,. ,.,:: _:." \' .,.,' .:. _' :.' : .- ," .. .- .. ..:. '," ,',' "':-.. ,',:'; ,).. ,::__'" ' . ,",: .;., ~Y, ~ ': .., -, ,;\.~-:,:.. ,. ..'.~: , :-. :":" "-',',;:\.;t". _.': ''':;' ..

(include date and explanation-submit to Change Manager for re-consideration---Significant changes must be approved by either the Change Review Board or the Solution Design Center)

Page 8

DelllSpherion Managed Deployment SOW

12

Case 3:07-cv-02178-W-AJB

Document 22-6

Filed 04/18/2008

Page 13 of 13

Dell I Services

Appendix C - Customer Sites and Schedule

The Services will be provided for the following Customer locations during the term of this SOW.

Additional Customer locations may be included as mutually agreed using the Change Management
process. The Customer Program Manager will ensure that a Site Coordinator is assigned for each
location prior to delivery of Services. Include the VSSD schedule file here for reference

C:\Docurrnts and

Settings\dav id_ va lenl

.

Page 9

Dell/Spherion Managed Deployment SOW

13