Hy-Lok U.S.A., Inc. v. AVF Process Controls, Inc. et al

Filing 14

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Notice of Lodging 11 (ec)

Hy-Lok U.S.A., Inc. v. AVF Process Controls, Inc. et al

Doc. 14

1 2 3 4 5 6 7 8 9 10 11 HY-LOK U.S.A., INC., 12 13

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) Case No. CV 10-2091-DMG (MANx) ) ) ORDER RE: STIPULATED ) PROTECTIVE ORDER ) ) ) ) ) ) )

Plaintiff, vs. AND DOES 1-10, Inclusive, Defendant.

14 AVF PROCESS CONTROLS, INC. 15 16 17 18

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

19 the parties' Stipulated Protective Order, filed on June 29, 2010, the terms of the 20 Stipulated Protective Order are adopted as a protective order of this Court, except to 21 the extent, as set forth below, that those terms have been modified by the Court's 22 amendment of Paragraph 10(f) of the Stipulated Protective Order. 23 24

The parties are expressly cautioned that the designation of any information,

25 document, or thing as Confidential Information does not, in and of itself, create any 26 entitlement to file such information, document, or thing, in whole or in part, under 27 28

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1 seal. Accordingly, reference to this Protective Order or to the partes' designation of 2 any information, document, or thing as Confidential Information is wholly 3 insufficient to warrant a filing under seal. 4

There is a strong presumption that the public has a right of access to judicial The parties' mere

5 proceedings and records in civil cases. In connection with non-dispositive motions, 6 good cause must be shown to support a filing under seal. 7 designation of any information, document, or thing as Confidential Information does 8 not - - without the submission of competent evidence, in the form of a declaration 9 or declarations, establishing that the material sought to be filed under seal qualifies 10 as confidential, privileged, or otherwise protectible - - constitute good cause. 11 12

Further, if sealing is requested in connection with a dispositive motion or

13 trial, then compelling reasons, as opposed to good cause, for the sealing must be 14 shown, and the relief sought shall be narrowly tailored to serve the specific interest 15 to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th 16 Cir. 2010). For each type of information, document, or thing sought to be filed 17 under seal in connection with a dispositive motion or trial, the party seeking 18 protection must articulate compelling reasons, supported by specific facts and legal 19 justification, for the requested sealing order. 21 declaration. 22 23

Again, competent evidence

20 supporting the application to file documents under seal must be provided by

Any document that is not confidential, privileged, or otherwise protectible in

24 its entirety will not be filed under seal if the confidential portions can be redacted. 25 If documents can be redacted, then a redacted version for public viewing, omitting 26 only the confidential, privileged, or otherwise protectible portions of the document, 27 28

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1 shall be filed. Any application that seeks to file documents under seal in their 2 entirety should include an explanation of why redaction is not feasible. 3 4 5 6

TERMS OF STIPULATED PROTECTIVE ORDER 1. This stipulated protective order (the "Stipulated Protective Order")

7 shall govern documents, materials, and information, whether oral, written, or 8 demonstrative produced or otherwise made available by any party or third-party 9 ("Producing Entity") to any party ("Receiving Party") in connection with discovery 10 in this action ("Discovery Material"), which has been designated as confidential by 11 the producing party, and shall continue in effect after the conclusion of this 12 litigation. 13 14

2.

Discovery Material may only be used and disclosed for the purposes of

15 this litigation, including appeals, and may not be used for any other purpose. 16 17

3.

"Confidential Information" refers to Discovery Material that the

18 Producing Entity in good faith regards as confidential or proprietary or financial 19 information that it would not ordinarily disclose, is not known to persons outside the 20 Producing Entity, which the Producing Entity has protected against disclosure, and 21 which the Producing Entity believes in good faith would harm its competitive 22 position if it was disclosed without protections. "Confidential Information" includes 23 any copies or summaries of such information or any materials that reveal the 24 contents of such information. 25 26

4.

All or any portion of any Discovery Material may be designated as

27 Confidential Information provided such designation is made in good faith, and, once 28 designated, such material shall be treated as Confidential Information, under the

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1 terms of the Stipulated Protective Order until such designation is withdrawn by the 2 Producing Entity or by an Order of this Court. 3

5.

Documents may be designated as Confidential Information by placing a Electronically stored

4 stamp on each page that reads "CONFIDENTIAL."

5 information may be designated as Confidential Information by placing a mark that 6 reads "CONFIDENTIAL" on the information or media containing the information. 7 Electronically stored information may be designated as Attorneys' Eyes Only 8 Information by placing a mark that, in substance, reads "ATTORNEYS' EYES 9 ONLY" on the information or media containing the information. 10 11

6.

Deposition exhibits or transcripts, or any portion thereof, may be

12 designated as Confidential Information by making such a designation on the record 13 at the deposition or by making such a designation in writing within thirty days of 14 receipt of the deposition transcript by the Producing Entity. 15 16

Until thirty days after receipt by the Producing Entity of the deposition

17 transcript, the entire transcript and all exhibits shall be treated as CONFIDENTIAL. 18 The party conducting the deposition shall bear the burden of ensuring that the cover 19 page and any designated portions of the original transcript or any copies of the 20 transcript bear, in substance, the legend "CONFIDENTIAL - - Subject to Protective 21 Order". 22 23

7.

Responses to interrogatories, responses to requests for production of

24 documents, information or things, and responses to requests for admission, may be 25 designated as Confidential Information by placing, in substance, the legend 26 "CONFIDENTIAL," on the first page of such document and on any pages that 27 contain Confidential Information. 28

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8.

In the event that a Producing Entity inadvertently fails to designate any

2 Discovery Material as Confidential Information, that material shall still be treated as 3 Confidential Information provided that the Producing Entity provides written notice 4 to the Receiving Party, as soon as practicable, designating the material as 5 Confidential Information. Upon receipt of such written notice, the Receiving Party 6 shall treat the designated material as Confidential Information and shall stamp or 7 mark it accordingly, or, if the Producing Entity provides correctly designated copies 8 of the material, destroy the mis-designated material or return it to the Producing 9 Entity. The Receiving Party shall not be responsible for any use or disclosure of the 10 mis-designated material prior to receipt of such written notice, provided such use or 11 disclosure was proper with respect to the material as it was designated at the time. 12 13

9.

Any party may dispute the designation of Discovery Material as

14 Confidential Information, by setting forth the grounds for such dispute in writing to 15 the Producing Entity. If the dispute cannot be resolved informally among counsel, it 16 may be submitted to the Court by written motion for resolution. The Producing 17 Entity shall bear the burden of proof as to the propriety of any designation. Pending 18 informal resolution by the parties or order of this Court, any disputed information 19 shall be treated in accordance with its designation by the Producing Entity. 20 21

10.

Counsel for the Receiving Party shall not disclose or permit disclosure a. b. c. the Receiving Party; counsel for the Receiving Party and employees of such counsel; consultants or experts employed or retained by the Receiving

22 of Confidential Information to any other person or entity, except: 23 24 25

26 Party to assist counsel in this litigation, and their employees or support staff, to the 27 extent reasonably necessary to provide such assistance, provided that such 28

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1 consultant or expert, or any of their employees or support staff, is not a present or 2 former employee, officer, or director of a party to this litigation; 3

d.

any person called to testify under oath by the Receiving Party in

4 connection with this litigation, during their testimony, provided they do not retain 5 copies of such documents; 6 7 8 9

e. f. 11.

a court reporter at a deposition; or the Court and court employees.

No information may be disclosed to any person in accordance with

10 subsections (c), (d), or (e) of Paragraph 10 of the Stipulated Protective Order unless 11 such person has agreed to be bound by the terms of the Stipulated Protective order 12 by signing the Confidentiality Agreement attached hereto as Exhibit A. 13 14

12.

If a Receiving Party proposes to file Confidential Information with the

15 Court (including pleadings, memoranda, or other documents that quote or 16 summarize such information) if any papers to be filed with the Court contain 17 protected information, the proposed filing shall be accompanied by an application to 18 file the papers or the portion thereof containing the protected information (if such 19 portion is segregable) under seal; and the application shall be directed to the judge to 20 whom the papers are directed. The Receiving Party shall also file a redacted version 21 of the motion and supporting papers. All papers that refer to or rely upon such 22 evidence shall designate the particular aspects that are confidential, so that the 23 Court, in drafting Orders, to determine whether there is evidence that should not be 24 specifically identified in the Order(s). 25 26

13.

If any Confidential Information is disclosed to any person other than as

27 permitted by Paragraph 10 of the Stipulated Protective Order, the party responsible 28 for the disclosure shall, upon discovery of the disclosure, immediately inform the

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1 Producing Entity whose information is disclosed of all facts pertinent to the 2 disclosure, including the name, address, and employer of the person to whom the 3 disclosure was made.

The party responsible for the disclosure shall take all

4 reasonable steps to prevent any further disclosure of the Confidential Information. 5 6

16. [sic]1 Within thirty days of the conclusion of this litigation, including any

7 appeals, each party shall, through its counsel, provide written confirmation to the 8 Producing Entity that the party has destroyed or returned any and all Confidential 9 Information, provided that counsel of record for each party may keep a copy of all 10 pleadings and correspondence in this litigation and any attorney work-product, and 11 further provided that all retained Confidential Information or shall be treated in 12 accordance with the terms of the Stipulated Protective Order. 13 14

17.

Nothing in this Order shall be construed to limit a Producing Entity's

15 use or disclosure of its own materials. 16 17

18.

If Discovery Material is inadvertently produced that is subject to a

18 claim of privilege or of protection as attorney work product or trial-preparation 19 material and the Producing Entity notifies the Receiving Party of the claim and the 20 basis for it, then: (a) such disclosure shall be without prejudice to any claim of 21 privilege or protection, (b) the Receiving Party shall not argue that such production 22 constitutes waiver of any claim or privilege or protection, (c) the Receiving Party 23 shall promptly return or destroy the material in question and any copies. If the 24 Receiving Party in good faith disputes the claim of privilege or protection, the 25 Receiving Party may maintain one copy of the disputed material, provided it 26 promptly presents the information to the Court under seal for a determination of the 27 28
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The Stipulated Protective Order does not include either a Paragraph 14 or 15. 7

1 claim. If the Receiving Party disclosed the information before being notified, it must 2 take reasonable steps to retrieve it. 3 information until the claim is resolved. 4 5

The Producing Entity must preserve the

19.

Nothing in this Order shall be construed as authorizing a party to

6 disobey a lawful subpoena issued in another action. 7 8

20.

Nothing in this Stipulation and Order purports to control or govern the

9 handling of Confidential Information at the trial of this matter or at other hearings, 10 which shall be determined by the Court. 11 12 13 14 Dated: October 6, 2010 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Margaret A. Nagle United States Magistrate Judge IT IS SO ORDERED.

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EXHIBIT A I have reviewed the Stipulated Protective Order, dated __________________, 2010 (the "Stipulated Protective Order") in the matter of Hy-Lok U.S.A., Inc. v. AVF Process Controls, Inc. I understand that pursuant to the Stipulated Protective Order, information disclosed in this matter through discovery shall be held confidential pursuant to the terms of the Protective Order. I hereby agree to be bound by the terms of the Stipulated Protective Order, including all provisions relating to the treatment of confidential information. Dated at _____________________, this _____ day of _____________, 201__ Signature:__________________________ Printed Name:__________________________ Address:__________________________ __________________________ __________________________

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