Hohenberg v. Ferrero USA, Inc
ORDER granting 29 Motion for Protective Order. Signed by Magistrate Judge Cathy Ann Bencivengo on 04/18/2011. (ag) (jrl).
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 CASE NO.: 11cv0205-H (CAB) 11 12 13 In re FERRERO LITIGATION PROTECTIVE ORDER 14 [Doc. No. 29] 15 16 17 18 19 20 The Court recognizes that at least some of the documents and information (“materials”) being sought through discovery in the above-captioned action are, for competitive reasons, normally kept confidential by the parties. The parties have agreed to be bound by the terms of this 21 Protective Order (“Order”) in this action. 22 23 The materials to be exchanged throughout the course of the litigation between the parties 24 may contain trade secret or other confidential research, technical, business plans, cost, price, 25 marketing or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26 26(c)(7). The purpose of this Order is to protect the confidentiality of such materials during the 27 litigation. THEREFORE: 28 PROTECTIVE ORDER 11CV0205 DEFINITIONS 1 2 1. The term “Confidential Information” will mean and include information contained or 3 disclosed in any materials, including documents, portions of documents, answers to 4 interrogatories, responses to requests for admissions, trial testimony, deposition testimony, and 5 transcripts of trial testimony and depositions, including data, summaries, and compilations derived 6 therefrom that is deemed to be Confidential Information by any party to which it belongs. 7 2. The term “materials” will include, but is not be limited to: documents; correspondence; 8 9 memoranda; emails; bulletins; blueprints; specifications; customer lists or other material that 10 identify customers or potential customers; price lists or schedules or other matter identifying 11 pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; 12 books of account; worksheets; notes of conversations; desk diaries; appointment books; expense 13 accounts; recordings; photographs; motion pictures; compilations from which information can be 14 obtained and translated into reasonably usable form through detection devices; sketches; drawings; 15 16 notes (including laboratory notebooks and records); reports; studies, research (including without 17 limitation, notes, reports, raw data, questionnaires and protocols); presentations; business plans; 18 business records; instructions; disclosures; other writings; models and prototypes and other 19 physical objects. 20 21 3. The term “counsel” will mean outside counsel of record, and the attorneys, paralegals, secretaries, and other support staff employed by those law firms as well as in-house attorneys and 22 paralegals for Ferrero U.S.A., Inc. 23 GENERAL RULES 24 25 4. Each party to this litigation that produces or discloses any materials, answers to 26 interrogatories, responses to requests for admission, trial testimony, deposition testimony, and 27 transcripts of trial testimony and depositions, or information that the producing party believes 28 PROTECTIVE ORDER 11CV0205 1 1 2 should be subject to this Protective Order may designate the same as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY.” 3 a. Designation as “CONFIDENTIAL”: Any party may designate information as 4 “CONFIDENTIAL” only if, in the good faith belief of such party and its counsel, the 5 unrestricted disclosure of such information could be potentially prejudicial to the business or 6 operations of such party. 7 b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any party may 8 9 designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” only if, in the good 10 faith belief of such party and its counsel, the information is among that considered to be most 11 sensitive by the party, including but not limited to trade secret or other confidential research, 12 development, financial or other commercial information. 13 5. In the event the producing party elects to produce materials for inspection, no marking 14 need be made by the producing party in advance of the initial inspection. For purposes of the 15 16 initial inspection, all materials produced will be considered as “CONFIDENTIAL - FOR 17 COUNSEL ONLY,” and must be treated as such pursuant to the terms of this Order. Thereafter, 18 upon selection of specified materials for copying by the inspecting party, the producing party 19 must, within a reasonable time prior to producing those materials to the inspecting party, mark the 20 copies of those materials that contain Confidential Information with the appropriate confidentiality 21 marking. 22 6. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential 23 24 Information of any party: 25 a. the deposition or portions of the deposition must be designated as containing Confidential 26 Information subject to the provisions of this Order; such designation must be made on the 27 record whenever possible, but a party may designate portions of depositions as containing 28 PROTECTIVE ORDER 11CV0205 2 1 Confidential Information after transcription of the proceedings; [A] party will have until 2 fourteen (14) days after receipt of the deposition transcript to inform the other party or 3 parties to the action of the portions of the transcript to be designated “CONFIDENTIAL” 4 or “CONFIDENTIAL – FOR COUNSEL ONLY.” 5 6 b. the disclosing party will have the right to exclude from attendance at the deposition, during such time as the Confidential Information is to be disclosed, any person other than the 7 deponent, counsel (including their staff and associates), the court reporter, and the 8 9 person(s) agreed upon pursuant to paragraph 8 below; and 10 c. the originals of the deposition transcripts and all copies of the deposition must bear the 11 legend “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY,” as 12 appropriate, and the original or any copy ultimately presented to a court for filing must not 13 be filed unless it can be accomplished under seal, identified as being subject to this Order, 14 and protected from being opened except by order of this Court. 15 16 7. All Confidential Information designated as “CONFIDENTIAL” or “CONFIDENTIAL - 17 FOR COUNSEL ONLY” must not be disclosed by the receiving party to anyone other than those 18 persons designated within this order and must be handled in the manner set forth below and, in 19 any event, must not be used for any purpose other than in connection with this litigation, unless 20 and until such designation is removed either by agreement of the parties, or by order of the Court. 21 8. Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” must be viewed 22 only by counsel (as defined in paragraph 3) of the receiving party, and by independent experts 23 24 under the conditions set forth in this Paragraph. The right of any independent expert to receive 25 any Confidential Information will be subject to the advance approval of such expert by the 26 producing party or by permission of the Court. The party seeking approval of an independent 27 expert must provide the producing party with the name and curriculum vitae of the proposed 28 PROTECTIVE ORDER 11CV0205 3 1 independent expert, and an executed copy of the form attached hereto as Exhibit A, in advance of 2 providing any Confidential Information of the producing party to the expert. Any objection by 3 the producing party to an independent expert receiving Confidential Information must be made 4 in writing within fourteen (14) days following receipt of the identification of the proposed 5 expert. Confidential Information may be disclosed to an independent expert if the fourteen (14) 6 day period has passed and no objection has been made. The approval of independent experts 7 must not be unreasonably withheld. 8 9 9. Information designated “CONFIDENTIAL” must be viewed only by counsel (as defined 10 in paragraph 3) of the receiving party, by independent experts (pursuant to the terms of 11 paragraph 8), and by the additional individuals listed below, provided each such individual has 12 read this Order in advance of disclosure and has agreed in writing to be bound by its terms: 13 14 a. Executives who are required to participate in policy decisions with reference to this action; 15 16 17 18 19 20 21 b. Personnel of the parties with whom Counsel for the parties find it necessary to consult, in the discretion of such counsel, in preparation for trial of this action; and c. Stenographic and clerical employees associated with the individuals identified above. 10. With respect to material designated “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY,” any person indicated on the face of the document to be its originator, author or a recipient of a copy of the document, may be shown the same. 22 11. All information which has been designated as “CONFIDENTIAL” or “CONFIDENTIAL 23 24 -FOR COUNSEL ONLY” by the producing or disclosing party, and any and all reproductions of 25 that information, must be retained in the custody of the counsel for the receiving party identified in 26 paragraph 3, except that independent experts authorized to view such information under the terms 27 28 PROTECTIVE ORDER 11CV0205 4 1 2 3 of this Order may retain custody of copies such as are necessary for their participation in this litigation. 12. Before any materials produced in discovery, answers to interrogatories, responses to 4 requests for admissions, deposition transcripts, or other documents which are designated as 5 Confidential Information are filed with the Court for any purpose, the party seeking to file such 6 material must seek permission of the Court to file the material under seal. 7 13. At any stage of these proceedings, any party may object to a designation of the materials 8 9 as Confidential Information. The party objecting to confidentiality must notify, in writing, 10 counsel for the designating party of the objected-to materials and the grounds for the objection. If 11 the dispute is not resolved consensually between the parties within seven (7) days of receipt of 12 such a notice of objections, the objecting party may move the Court for a ruling on the objection. 13 The materials at issue must be treated as Confidential Information, as designated by the 14 designating party, until the Court has ruled on the objection or the matter has been otherwise 15 16 17 resolved. 14. All Confidential Information must be held in confidence by those inspecting or receiving 18 it, and must be used only for purposes of this action. Counsel for each party, and each person 19 receiving Confidential Information must take reasonable precautions to prevent the unauthorized 20 or inadvertent disclosure of such information. If Confidential Information is disclosed to any 21 person other than a person authorized by this Order, the party responsible for the unauthorized 22 disclosure must immediately bring all pertinent facts relating to the unauthorized disclosure to the 23 24 attention of the other parties and, without prejudice to any rights and remedies of the other parties, 25 make every effort to prevent further disclosure by the party and by the person(s) receiving the 26 unauthorized disclosure. 27 28 PROTECTIVE ORDER 11CV0205 5 1 15. No party will be responsible to another party for disclosure of Confidential Information 2 under this Order if the information in question is not labeled or otherwise identified as such in 3 accordance with this Order. 4 5 6 16. If a party, through inadvertence, produces any Confidential Information without labeling or marking or otherwise designating it as such in accordance with this Order, the designating party may give written notice to the receiving party that the document or thing produced is 7 deemed Confidential Information, and that the document or thing produced should be treated as 8 9 such in accordance with that designation under this Order. The receiving party must treat the 10 materials as confidential, once the designating party so notifies the receiving party. If the 11 receiving party has disclosed the materials before receiving the designation, the receiving party 12 must notify the designating party in writing of each such disclosure. Counsel for the parties will 13 agree on a mutually acceptable manner of labeling or marking the inadvertently produced 14 materials as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY”- SUBJECT 15 16 17 TO PROTECTIVE ORDER. 17. Nothing within this order will prejudice the right of any party to object to the production 18 of any discovery material on the grounds that the material is protected as privileged or as 19 attorney work product. 20 21 18. Nothing in this Order will bar counsel from rendering advice to their clients with respect to this litigation and, in the course thereof, relying upon any information designated as 22 Confidential Information, provided that the contents of the information must not be disclosed. 23 24 19. This Order will be without prejudice to the right of any party to oppose production of any 25 information for lack of relevance or any other ground other than the mere presence of Confidential 26 Information. The existence of this Order must not be used by either party as a basis for discovery 27 that is otherwise improper under the Federal Rules of Civil Procedure. 28 PROTECTIVE ORDER 11CV0205 6 1 2 3 20. Nothing within this order will be construed to prevent disclosure of Confidential Information if such disclosure is required by law or by order of the Court. 21. Upon final termination of this action, including any and all appeals, counsel for each party 4 must, upon request of the producing party, return all Confidential Information to the San Diego 5 office for the attorney for the party that produced the information, including any copies, excerpts, 6 and summaries of that information. Notwithstanding the foregoing, counsel for each party may 7 retain all pleadings, briefs, memoranda, motions, and other documents filed with the Court that 8 9 refer to or incorporate Confidential Information, and will continue to be bound by this Order with 10 respect to all such retained information. Further, attorney work product materials that contain 11 Confidential Information need not be destroyed, but if they are not destroyed, the person in 12 possession of the attorney work product will continue to be bound by this Order with respect to all 13 such retained information. 14 22. The restrictions and obligations set forth within this Order will not apply to any 15 16 information that: (a) the parties agree should not be designated Confidential Information; (b) the 17 parties agree, or the Court rules, is already publicly available; (c) the parties agree, or the Court 18 rules, has become publicly available other than as a result of disclosure by the receiving party, its 19 employees, or its agents in violation of this Order; or (d) has come or will come into the receiving 20 party's legitimate knowledge independently of the production by the designating party. 21 23. The restrictions and obligations within this Order will not be deemed to prohibit 22 discussions of any Confidential Information with anyone if that person already has or obtains 23 24 legitimate possession of that information. 25 24. Transmission by facsimile is acceptable for all notification purposes within this Order. 26 25. This Order may be modified by agreement of the parties, subject to approval by the Court. 27 28 PROTECTIVE ORDER 11CV0205 7 1 26. The Court may modify the terms and conditions of this Order for good cause, or in the 2 interest of justice, or on its own order at any time in these proceedings. The parties prefer that the 3 Court provide them with notice of the Court's intent to modify the Order and the content of those 4 modifications, prior to entry of such an order. 5 IT IS SO ORDERED. 6 7 Date: April 18, 2011 CATHY ANN BENCIVENGO United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROTECTIVE ORDER 11CV0205 8