Robert Tur v. A&E Television Networks

Filing 23

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 22 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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)
ROBERT TUR, an individual; and
ROBERT STAGNARO, an individual, )
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Plaintiff,
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vs.
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18 A & E TELEVISION NETWORKS, an )
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entity of unknown legal description;
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Defendants.
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Case No. CV 10-5679 DDP (MANx)
PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

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

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the parties’ Joint Stipulation for Entry of Protective Order and [Proposed]

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Protective Order (“Stipulation”) filed on May 4, 2012, the terms of the protective

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order to which the parties have agreed are adopted as a protective order of this

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Court (which generally shall govern the pretrial phase of this action) except to the

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extent, as set forth below, that those terms have been substantively modified by the

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Court’s deletion of paragraph 1 of the Stipulation.

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

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document, or thing as Confidential, Highly Confidential – Attorneys’ Eyes Only, or

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other designation(s) used by the parties, does not, in and of itself, create any

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entitlement to file such information, document, or thing, in whole or in part, under

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seal. Accordingly, reference to this Protective Order or to the parties’ designation

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of any information, document, or thing as Confidential, Highly Confidential –

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Attorneys’ Eyes Only, or other designation(s) used by the parties, is wholly

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insufficient to warrant a filing under seal.
There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. The parties’ mere

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designation of any information, document, or thing as Confidential, Highly

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Confidential – Attorneys’ Eyes Only, or other designation(s) used by parties, does

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not -- without the submission of competent evidence, in the form of a

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declaration or declarations, establishing that the material sought to be filed

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under seal qualifies as confidential, privileged, or otherwise protectable --

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constitute good cause.

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

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trial, then compelling reasons, as opposed to good cause, for the sealing must be

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shown, and the relief sought shall be narrowly tailored to serve the specific interest

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to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th

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Cir. 2010). For each item or type of information, document, or thing sought to be

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filed or introduced under seal in connection with a dispositive motion or trial, the

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party seeking protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again, competent

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evidence supporting the application to file documents under seal must be

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provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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Notwithstanding any other provision of this Protective Order, in the event that this

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case proceeds to trial, all information, documents, and things discussed or

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introduced into evidence at trial will become public and available to all members of

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the public, including the press, unless sufficient cause is shown in advance of trial

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to proceed otherwise.

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TERMS OF PROTECTIVE ORDER

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1.
2.

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[OMITTED BY THE COURT]
DEFINITIONS

2.1

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Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, insurers, and outside counsel (and their
support staff), and any indemnitor providing a defense in this action on behalf of a
party.
2.2

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner generated, stored, or maintained (including, among other
things, testimony, transcripts, or tangible things) that are produced or generated in
disclosures or responses to discovery in this matter.
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“Confidential” Information or Items: information (regardless of how

generated, stored, or maintained) or tangible things that qualify for protection under
the standards developed under either FRCP 26(c) or the definition of “trade secret”

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identified in California Civil Code § 3426.1, which provides that trade secret

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“means information, including a formula, pattern, compilation, program, device,

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method, technique, or process, that: (1) Derives independent economic value,

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actual or potential, from not being generally known to the public or to other persons

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who can obtain economic value from its disclosure or use; and (2) Is the subject of

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efforts that are reasonable under the circumstances to maintain its secrecy.” Among

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other things, the parties anticipate that that Confidential Information will include

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financial information (such as insurance policies, financial statements, budgets, and

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other records of income and expenses), as well as other proprietary commercial

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information, such as business plans, programming ideas, and the like.
2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or Items:

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extremely sensitive “Confidential Information or Items” the disclosure of which to

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another Party or non-party would create a substantial risk of serious injury,

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including competitive injury, that could not be avoided by less restrictive means.

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2.5

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
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Producing Party: a Party or non-party that produces Disclosure or

Discovery Material in this action.
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Designating Party: a Party or non-party that designates information or

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items that it produces in disclosures or in responses to discovery as “Confidential”

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or “Highly Confidential – Attorneys’ Eyes Only.”

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2.8

Protected Material: any Disclosure or Discovery Material that is

designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.”
2.9

Outside Counsel: attorneys who are not employees of a Party but who

are retained to represent or advise a Party in this action.

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2.10 House Counsel: attorneys who are employees of a Party.

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2.11 Counsel (without qualifier): Outside Counsel and House Counsel, as

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well as their support staffs.

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2.12 Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this action and who is not a current employee

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of a Party or of a competitor of a Party and who, at the time of retention, is not

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anticipated to become an employee of a Party or a competitor of a Party. This

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definition includes a professional jury or trial consultant retained in connection with

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this litigation.

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2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying; videotaping; translating; preparing exhibits or

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demonstrations; organizing, storing, and/or retrieving data in any form or medium;

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etc.) and their employees and subcontractors.

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3.

SCOPE

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The protections conferred by this Protective Order cover not only Protected

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Material (as defined above), but also any information copied or extracted therefrom,

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as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,

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conversations, or presentations by parties or counsel in settings other than open

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court, that might reveal Protected Material.

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4.

DURATION

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Even after the termination of this litigation, the confidentiality obligations

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imposed by this Protective Order shall remain in effect until a Designating Party

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agrees otherwise in writing or a court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or non-party that designates information or items for protection under

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this Protective Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. A Designating Party must

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take care to designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify – so that other portions of the

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material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Protective Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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If it comes to a Party’s or a non-party’s attention that information or items

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that it designated for protection do not qualify for protection at all, or do not qualify

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for the level of protection initially asserted, that Party or non-party must promptly

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notify all other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

this Protective Order (see, e.g., second paragraph of section 5.2(a), below), or as

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otherwise stipulated or ordered, material that qualifies for protection under this

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Protective Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Protective Order requires:

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(a) for information in documentary form (apart from transcripts of

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depositions or other pretrial or trial proceedings), that the Producing Party affix the

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” at the top or bottom of each page that contains protected material. If

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only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted (either “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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A Party or non-party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection

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and before the designation, all of the material made available for inspection shall be

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deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Protective Order, then, before producing the specified

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documents, the Producing Party must affix the appropriate legend

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY”) at the top or bottom of each page that contains Protected Material. If only

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a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted (either “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).
(b) for testimony given in deposition, that the Party or non-party seeking

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protection for the testimony identify on the record, before the close of the

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deposition, all protected testimony, and further specify any portions of the

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testimony that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” When it appears that substantial portions of the testimony may qualify for

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protection, any Party or non-party may invoke on the record (at any time before the

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conclusion of the deposition) a right to have up to 20 days to identify the specific

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portions of the testimony as to which the Party or non-party seeks protection and to

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specify the level of protection being asserted (i.e., “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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Transcript pages containing Protected Material must be separately bound by

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the court reporter, who must affix to the top of each such page the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” as instructed by the Party or non-party offering or sponsoring the witness

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or presenting the testimony.

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(c) for information produced in some form other than documentary, and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” If only portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portions,

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specifying whether they qualify as “Confidential” or as “Highly Confidential –

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Attorneys’ Eyes Only.”

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5.3

Inadvertent Failures to Designate. An inadvertent failure to designate

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qualified information or items as “Confidential” or “Highly Confidential –

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Attorneys’ Eyes Only” does not, standing alone, waive the Designating Party’s right

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to secure protection under this Order for such material. If material is appropriately

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designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” after

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the material was initially produced, or after the periods identified for designation in

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section 5.2(b), the Receiving Party, after receiving notice of the designation, must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Protective Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable substantial

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unfairness, unnecessary economic burdens, or a later significant disruption or delay

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of the litigation, a Party does not waive its right to challenge a confidentiality

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designation by electing not to assert a challenge promptly after the designation.

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6.2

Meet and Confer. A Party which or who elects to initiate a challenge

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to a Designating Party’s confidentiality designation must do so in good faith and

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must begin the process by conferring with counsel for the Designating Party. In

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conferring, the challenging Party must explain the basis for its belief that the

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particular confidentiality designation was not proper and must give the Designating

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Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for

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the chosen designation. A challenging Party may proceed to the next stage of the

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challenge process only if it first engages in this meet and confer process.

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6.3

Judicial Intervention. A Party which or who elects to press a

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challenge to a confidentiality designation after considering the justification offered

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by the Designating Party may proceed in accordance with Local Rules 37-1 through

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37-4. The burden of establishing the confidentiality in any such challenge

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proceeding shall be on the Designating Party. Until the Court rules on the

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challenge, all parties shall continue to afford the material in question the level of

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protection to which it is entitled under the Producing Party’s designation.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Disclosure or Discovery

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Material only for prosecuting, defending, or attempting to settle this litigation.

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Protective Order. When the litigation has been

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terminated, a Receiving Party must comply with the provisions of section 11, below

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(FINAL DISPOSITION).

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A Receiving Party must store and maintain Protected Material at a location

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and in a secure manner that ensures that only the persons authorized under this

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Protective Order have access.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated CONFIDENTIAL

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only to:

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(a) the Court and its personnel;

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(b) the author of the document or the original source of the information;

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(c) the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(d) court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this litigation;
(e) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;
(f) Experts (as defined in this Protective Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation and who have signed the

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“Agreement to Be Bound by Protective Order” (Exhibit A); and,

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(g) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A). Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by

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the court reporter and may not be disclosed to anyone except as permitted under this

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Protective Order.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted

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in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” only to:

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(a) the Court and its personnel;

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(b) the author of the document or the original source of the information;

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(c) the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(d) In-House Counsel for the Receiving Party and In-House Counsel’s legal

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staff to whom it is reasonably necessary to disclose the information for this

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litigation;

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(e) court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this litigation; and,

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(f) Experts (as defined in this Protective Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this litigation, and who have signed

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the “Agreement to Be Bound by Protective Order” (Exhibit A); and,

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(h) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A). Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material must be separately bound by

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the court reporter and may not be disclosed to anyone except as permitted under this

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Protective Order.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION.

If a Receiving Party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any information or items designated in
this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify the Designating
Party, in writing (by fax or e-mail, if possible) immediately. Such notification must
include a copy of the subpoena or court order.
The Receiving Party also must immediately inform in writing the Party who
caused the subpoena or order to issue in the other litigation that some or all the
material covered by the subpoena or order is the subject of this Protective Order. In
addition, the Receiving Party must deliver a copy of this Protective Order promptly
to the Party in the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an

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opportunity to move to protect its confidentiality interests in the court from which
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the subpoena or order issued. The Designating Party shall bear the burdens and the
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expenses of seeking protection in that court of its confidential material – and
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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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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
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 copies of the Protected Material; (c) inform the person or persons to whom
unauthorized disclosures were made of all the terms of this Protective Order; and
(d) request such person or persons to execute the “Acknowledgment and Agreement
to Be Bound” that is attached hereto as Exhibit A.
10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL

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 without complying with Civil
Local Rule 79-5.
11.

FINAL DISPOSITION

Unless otherwise ordered or agreed in writing by the Producing Party, within
60 days after the final termination of this action, each Receiving Party must return
all Protected Material to the Producing Party or certify in writing that all copies
have been destroyed. As used in this subdivision, “all Protected Material” includes
all copies, abstracts, compilations, summaries or any other form of reproducing or
capturing any of the Protected 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 identifies (by category, where appropriate) all the Protected
Material that was returned or destroyed and that affirms that the Receiving Party

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has not retained any copies, abstracts, compilations, summaries, or other forms of

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reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain a single

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archival electronic copy of all pleadings, motion papers, transcripts, legal

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memoranda, correspondence, or attorney work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION), above.

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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.
12.2 Right to Assert Other Objections. By having stipulated to the entry of

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this Protective Order, no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Protective Order. Similarly, no Party waives any right to object on any ground to

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use in evidence of any of the material covered by this Protective Order.

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IT IS SO ORDERED.

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DATE: May 24, 2012

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT 1: AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) Case No. CV10-5679 DDP (MANx)
ROBERT TUR, an individual; and
ROBERT STAGNARO, an individual, )
) AGREEMENT TO BE BOUND BY
) PROTECTIVE ORDER
Plaintiff,
)
)
vs.
)
A & E TELEVISION NETWORKS, an )
)
entity of unknown legal description;
)
and DOES 1 through 20, inclusive,
)
)
Defendants.
)
)

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I, __________________, declare and say that:

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1.

I am employed as ______________ by __________________.

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2.

I have read the Protective Order entered in Robert Tur, et al. v. A & E

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Television Networks, Case No. CV10-5679 DDP (MANx), and have received a

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copy of the Protective Order.
3.

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I promise that I will use any and all “Confidential” or “Highly

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Confidential – Attorneys’ Eyes Only” information, as defined in the Protective

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Order, given to me only in a manner authorized by the Protective Order, and only to

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assist counsel in the litigation of this matter.
4.

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I promise that I will not disclose or discuss such “Confidential” or

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“Highly Confidential – Attorneys’ Eyes Only” information with anyone other than

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the persons described in the Protective Order.
5.

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I acknowledge that, by signing this agreement, I am subjecting myself

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to the jurisdiction of the United States District Court for the Central District of

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California with respect to enforcement of the Protective Order.
6.

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I understand that any disclosure or use of “Confidential” or “Highly

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Confidential – Attorneys’ Eyes Only” information in any manner contrary to the

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provisions of the Protective Order may subject me to sanctions for contempt of

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court.

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I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed this __ day of ______________, 2012, at __________________.

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[name]