Southern California Institute of Law v. TCS Education System et al

Filing 69

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 67 . See document for details. (yb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN CALIFORNIA
INSTITUTE OF LAW, a California
corporation,

CASE NO.: CV10-8026 JAK (AJWx)
[Assigned to Hon. John A. Kronstadt]

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Plaintiff,
vs.

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TCS EDUCATION SYSTEM, an
Illinois corporation; DAVID J.
FIGULI, an individual; and GLOBAL
EQUITIES, LLC d/b/a HIGHER
EDUCATION GROUP, a Colorado
limited liability company,

PROTECTIVE ORDER
GOVERNING THE PRODUCTION
AND USE OF INFORMATION
Action Filed: Oct. 25, 2010

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Defendants.

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______________________________________________________________________________
[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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On August 22, 2011, the parties filed a Stipulation requesting that the Court

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enter a Protective Order in this action pursuant to Rule 26(c) of the Federal Rules

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of Civil Procedure to limit the use of their confidential, proprietary, business,

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financial, technical, engineering and other private information;
The Court, having reviewed the parties' Stipulation, and for good cause

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shown, ORDERS as follows:

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1.

RECITALS OF GOOD CAUSE
1.1

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Preparation and trial of this action may require the discovery of certain

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business records and other materials that contain trade secrets or confidential

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information including, but not limited to, tax and financial information, strategic

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planning documents, personnel information, self-evaluation materials, confidential

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regulatory submissions and other competitively sensitive and proprietary

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information.
1.2.

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Public dissemination of trade secrets or the parties' confidential or

proprietary information may harm the parties and their respective businesses.
1.3

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Disclosure of confidential information to persons designated in this

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Stipulated Protective Order may be necessary to enable the parties to fairly prepare

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this case for trial and other proceedings.

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2.

DEFINITIONS
2.1

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

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trustees, employees, consultants, retained experts, outside counsel (and their

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support staff), members, parents, subsidiaries and affiliates.

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2.2

Discovery Material:

All items or information, regardless of the

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medium or manner generated, stored, or maintained (including, among other things,

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documents, electronically stored information, testimony, and tangible things), that

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are produced in this matter.

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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

2.3

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CONFIDENTIAL INFORMATION: Information that is sensitive

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and/or proprietary and that warrants protection under this Order, specifically: (1)

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trade secrets as defined under California Civil Code Section 3426.1(d) and

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applicable case law; (2) other confidential and proprietary technical, engineering,

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research or development information; (3) personal or commercial financial,

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budgeting, cost, pricing, and/or accounting information; (4) information about

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existing and potential clients, faculty and students; (5) marketing and branding

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studies, performance and projections, business strategies, decisions and/or

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negotiations; (6) personnel compensation, evaluations and other employment

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information; (7) attorney-client or work product information; and (8) confidential

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and proprietary information about affiliates, parents, subsidiaries, and third parties

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with whom a Party has had business relationships.

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includes the Confidential Information itself, any information derived therefrom,

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and all copies, photographs, excerpts, and summaries thereof, as well as testimony

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and oral conversations derived therefrom or related thereto. Confidential

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Information does not include any information that is or becomes publicly available

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provided that this Order was not violated when the information was disclosed.
2.4

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Confidential Information

Producing Party: A Party that produces Discovery Material in this

action.

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2.5

Receiving Party: A Party that receives Discovery Material from a

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Producing Party.

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2.6

Designating Party: A Party that designates Discovery Material as

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CONFIDENTIAL pursuant to this Order.

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3.

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SCOPE OF PROTECTIVE ORDER
3.1

The protections of this Protective Order may be invoked with respect

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to any Discovery Material produced or created in this action that contains

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CONFIDENTIAL INFORMATION of any Party or non-party witness, or that the

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Producing Party is otherwise required or entitled by law to maintain in confidence,
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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and with respect to any deposition, court filing, correspondence, exhibits or

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discovery request or response containing or referring to such materials.

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Discovery Material may be designated CONFIDENTIAL INFORMATION by any

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Party or by any non-party producing materials in this action. The terms "Producing

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Party" or "Designating Party" as used herein shall be deemed to include a non-party

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that produces materials in this action.
3.2

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Said

This Protective Order does not in any way deprive any Party or non-

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party of its right to contest another Party's claims to protection for confidential or

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privileged information.

A Party's decision not to contest another party's

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designation of Discovery Material as "CONFIDENTIAL" is not to be construed as

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an admission that such material is a trade secret or otherwise deserving of

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protection under this Protective Order. No Party shall be deemed to be in violation

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of this Protective Order with respect to disclosures of any Discovery Materials to

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any other persons prior to the designation of that Discovery Material as

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"CONFIDENTIAL" pursuant to this Protective Order.

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4.

LIMITATIONS ON USE OF DISCOVERY MATERIAL

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Except as set forth herein, the Parties agree that all Discovery Material shall

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be used solely for the purpose of prosecuting or defending this action or any other

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proceeding between the Parties and may not be used for any other purpose. The

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Parties shall cooperate in maintaining the confidentiality of Discovery Material in

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any other action or proceeding, including seeking entry of an order similar in scope

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to this one. If the Parties cannot agree on a form of order, then any Party may

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apply for one.

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5.

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DESIGNATION OF CONFIDENTIAL INFORMATION
5.1

A Party may designate as CONFIDENTIAL any Discovery Material

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which it reasonably believes contains CONFIDENTIAL INFORMATION, and

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shall do so in the following manner:

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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

(a)

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Written

discovery

responses

may

be

designated

as

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CONFIDENTIAL by marking the document CONFIDENTIAL in the

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caption and in the header/footer appearing on each page, or by marking

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individual responses within the document as CONFIDENTIAL.
(b)

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Hard copy documents may be designated as CONFIDENTIAL

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by

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CONFIDENTIAL.
(c)

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marking

CD-ROMs,

each

page

containing

Confidential

Material

as

Electronic, magnetic or optical media (such as diskettes,
tapes,

or

digital

devices)

may

be

designated

as

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CONFIDENTIAL by marking the outside of the device as CONFIDENTIAL

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or by affixing a CONFIDENTIAL label to the device. The Receiving Party

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shall apply the same marking to any printouts from any electronic, magnetic

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or optical media designated as CONFIDENTIAL.

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(d)

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CONFIDENTIAL by making a statement to that effect on the record at the

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deposition. The Court Reporter or other person recording the proceedings

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shall segregate and separately bind any portion of the transcript which has

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been designated as CONFIDENTIAL. In the alternative, the transcripts or

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portions thereof may be designated as CONFIDENTIAL by written notice to

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counsel for the parties given within 20 days of the Designating Party’s

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receipt of the transcript from the Court Reporter.

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5.2

Deposition transcripts, or any portions thereof, may be designated as

A Party that inadvertently fails to designate Discovery Material as

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CONFIDENTIAL does not waive its right to designate that material as

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CONFIDENTIAL. The Designating Party shall, upon discovery of the inadvertent

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failure to designate, promptly notify in writing the Receiving Party and provide it

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with substitute copies of the affected documents, marked as CONFIDENTIAL, at

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the expense of the Designating Party. The Receiving Party shall retrieve and

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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destroy all copies of the undesignated materials, including copies previously

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provided to any persons in addition to the Receiving Party itself.

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6.

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ACCESS TO CONFIDENTIAL INFORMATION
6.1

No disclosure or dissemination of CONFIDENTIAL INFORMATION

shall be made to anyone other than the following:

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(a)

This Court and any other court, jury, arbitrator or tribunal that is

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adjudicating claims between the Parties, including the staff of this

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Court and any other court, arbitrator or tribunal;

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(b)

Court reporters and videographers, and members of their staff,

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during the taking of testimony and to the extent necessary to provide a

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transcript or copy of the testimony taken;

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(c)

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is necessary that the designated material be shown for purposes of the

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litigation;

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(d)

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for supervising and/or actively engaged in the preparation of the case

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and their legal assistants and office personnel;

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(e)

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charged with the responsibility for supervising and/or actively

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engaged in the preparation of the case and their legal assistants and

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office personnel;

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(f)

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trial or other proceeding, if such person is informed of the terms of

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this Protective Order and provided with a copy of it. The witness shall

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be bound by the terms of this Order whether or not he or she complies

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with paragraph 6.2, below. The failure of a witness to comply with

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paragraph 6.2 shall not prevent the witness from being examined about

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the CONFIDENTIAL INFORMATION and/or Discovery Material;

Any Party, including any present employee thereof to whom it

Outside counsel for the Parties charged with the responsibility

In-house counsel for the Parties and any parent companies

Any person called to testify as a witness either at a deposition,

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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(g)

Outside experts or consultants retained by the Parties (or their

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counsel of record) to provide services in connection with this

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litigation, but only to the extent necessary for the expert or consultant

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to perform his or her work in connection with this litigation;

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(h)

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or a copy thereof was previously provided by the Designating Party, or

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who received it in the ordinary course of business;

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(i)

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if such person was an author, source or recipient of the material;

Persons who authored the document or to whom the document

Former directors, officers, employees and consultants of a Party

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(j)

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engaged by counsel to assist in the copying, imaging, handling or

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computerization of documents containing the material; and

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(k)

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upon motion of either Party, or upon stipulation of all Parties in

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writing.

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6.2

Employees of outside copying services or other vendors

Such other persons as hereafter may be authorized by the Court

Each individual who receives CONFIDENTIAL INFORMATION

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hereby agrees to subject himself or herself to the jurisdiction of this Court for

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purposes of any proceedings relating to the performance under, compliance with or

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violation of this Protective Order. In addition, each individual falling within the

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definitions of Paragraphs 6.1(c), (e), (f), (g), (h) and (k) above who is permitted by

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the Parties or their counsel to have access to CONFIDENTIAL INFORMATION

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shall be provided with a copy of this Protective Order for review prior to being

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given such access. Upon receiving the same, such person shall sign a Disclosure

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Agreement in the form attached hereto as Exhibit A indicating that he or she has

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read the Protective Order and agrees to comply with its terms.

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6.3

The signed Disclosure Agreements and Protective Orders provided for

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in Section 6.2 shall be retained by the counsel of record for the Party disclosing the

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CONFIDENTIAL INFORMATION to the person(s) signing the Disclosure
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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Agreements. Copies of the executed Disclosure Agreements shall be preserved by

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said counsel and shall be provided to the Producing Party if the Court so orders.

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7.

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SUBMISSION OF CONFIDENTIAL MATERIAL TO COURT
7.1

If a Party that designated Discovery Material as CONFIDENTIAL

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wishes to include such material in any filing with the Court, the document

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containing or attaching the CONFIDENTIAL Discovery Material shall be lodged

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with the Court with an application for filing under seal in accordance with Local

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Rule 79-5.1. If a Party wishes to include Discovery Material that another Party

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designated as CONFIDENTIAL in any filing with the Court, the filing Party shall

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notify the designating Party at least 7 days in advance of the filing date. The

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designating Party shall prepare an application for filing the CONFIDENTIAL

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Discovery Material under seal in accordance with Local Rule 79-5.1, which the

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filing Party shall file with its other filing, while lodging the CONFIDENTIAL

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Discovery material with the Court. The Party submitting the CONFIDENTIAL

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Discovery Material shall mark on the outside of the envelope containing the

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document the title of the action and a statement substantially in the following form:

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"CONFIDENTIAL, FILED UNDER SEAL

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By order of the United States District Court for the Central District of California,

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this envelope is not to be opened and its contents are not to be displayed or

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revealed except by further order of the Court."

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7.2

In the event a Party files a document containing CONFIDENTIAL

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Discovery Material other than in accordance with this paragraph, any Party may

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apply to the Court that such materials be placed under seal.

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7.3

All pleadings and other court filings that contain CONFIDENTIAL

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Discovery Materials shall include on the first page of such document, and all copies

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thereof, a statement substantially to the effect that "This Document Contains

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CONFIDENTIAL Materials."

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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8.

CHALLENGES TO CONFIDENTIAL DESIGNATIONS

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If, at any time, any Party claims that certain Discovery Material was

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improperly designated as CONFIDENTIAL, or believes that it is necessary to

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disclose such Material to persons other than those permitted by this Protective

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Order, said Party shall notify the Designating Party in writing and the Parties shall

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try to resolve their dispute in good faith on an informal basis. If the Parties are

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unable to do so, the objecting Party may make an appropriate application to the

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Court requesting that the specifically identified CONFIDENTIAL Discovery

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Material be excluded from the provisions of this Protective Order or that they be

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made available to specified other persons. The application shall be filed in

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accordance with Local Rule 37. It shall be the burden of the Designating Party to

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establish that the contested material is CONFIDENTIAL Discovery Material and

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therefore properly designated as such. Unless and until a Court’s ruling is obtained

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changing a designation, or the Parties agree otherwise, the Discovery Material

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involved shall be treated according to its designation.

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9.

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RETURN OF CONFIDENTIAL DISCOVERY MATERIALS
9.1

The parties acknowledge that if the case proceeds to trial, all trial

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exhibits and other information disclosed at trial that had been designated as

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CONFIDENTIAL during the action will become public and will be presumptively

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available to all members of the public, including the press, unless good cause is

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shown to the Court in advance of the trial to proceed otherwise.

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9.2

All other CONFIDENTIAL Discovery Material that has been

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disclosed under this Protective Order, and all copies, summaries and excerpts

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thereof, shall be returned to the Designating Party or destroyed, at the Receiving

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Party’s election, within ninety (90) days of the final disposition of this action,

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including any appeals. The Receiving Party shall certify in writing that all such

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material has been destroyed or returned at the end of said ninety (90) day period.

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The terms of this Protective Order will survive the termination of this litigation.
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

9.3

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Notwithstanding the foregoing, counsel for the parties shall be

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permitted to retain a file copy of materials created during the course of the

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litigation, or made part of the record, or which have been filed under seal with the

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Clerk of the Court and a copy of all depositions, including exhibits, and deposition

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evaluations.

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10.

INADVERTENT PRODUCTION OF PRIVILEGED OR WORK

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PRODUCT INFORMATION

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10.1 This Protective Order does not prejudice or otherwise limit the right

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of any Party to oppose production of any documents or information on the ground

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of attorney-client privilege, work product immunity or any other privilege or

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protection provided under law.

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10.2 If a Party inadvertently produces information that it considers

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privileged or protected, in whole or in part, or learns of the production of privileged

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or protected material by a third person, the Party asserting that an inadvertent

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production has occurred must, within 30 days of the date of discovery of the

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inadvertent production, give notice to all Parties that the Party claims that the

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document, in whole or in part, is privileged or protected. In addition, the notice

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must state the nature of the privilege or protection and the factual basis for

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asserting it. If the Parties cannot resolve the matter independently, the Parties

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agree to meet and confer and file a joint statement with the Judge assigned to this

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case of the results of such meeting. Thereafter, the Judge will order a conference

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or set the matter for briefing and hearing, after which the Judge will enter an order

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on the dispute.

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protected document elects not to voluntarily return same to the Producing Party, no

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use of the document may be made by the recipient until the Judge rules on the

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matter and the Court rules on any appeal from that order.

If the recipient of the inadvertently produced privileged or

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10.3 If the Judge rules that an inadvertently produced document is

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privileged or protected, all Parties shall, within thirty (30) days, return or destroy
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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the segregated copy and any other copies in their possession or control, and provide

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written assurance that a diligent search has been conducted and that all such

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documents have either been returned or destroyed.

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11.

INADVERTENT DISCLOSURE OF CONFIDENTIAL DISCOVERY

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MATERIAL

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11.1 An inadvertent or unintentional disclosure of "CONFIDENTIAL"

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Discovery Material will not be construed as a waiver, in whole or in part, of (i) any

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Party's claims of confidentiality either as to the specific information inadvertently

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or unintentionally disclosed or as to any other confidential material disclosed prior

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or subsequent to that date, or (ii) any Party's right to designate said material as

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"CONFIDENTIAL" or pursuant to this Protective Order.

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11.2 Should any documents, testimony, or information designated as

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"CONFIDENTIAL" be disclosed, inadvertently or otherwise, to any person or

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Party not authorized under this Order, then the Party responsible for the disclosure

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shall use its best efforts to (i) promptly retrieve the disclosed documents, testimony,

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or information from such unauthorized person or party, (ii) promptly inform such

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person or Party of all the provisions of this Protective Order, (iii) request such

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person or Party sign the "Non-Disclosure Agreement" attached as Exhibit A, if

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appropriate, (iv) identify such person or party immediately in writing to the

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Producing Party that designated the documents, testimony or information as

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"CONFIDENTIAL" and (v) identify the "CONFIDENTIAL" material in writing

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immediately

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"CONFIDENTIAL." If a Non-Disclosure Agreement is executed, it shall promptly

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be served upon the party that designated the "CONFIDENTIAL" material. Nothing

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in this paragraph shall limit the right of the party that designated the

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"CONFIDENTIAL" material to seek relief from the Court as a result of a Party that

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inadvertently or otherwise disclosed the material to a person or Party not authorized

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under this Protective Order.

to

the

producing

party

that

designated

the

material

as

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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12.

ADDITIONAL PROVISIONS

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12.1 This Protective Order does not prevent: (a) any disclosure of

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CONFIDENTIAL Discovery Material by the Party who has designated such

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Material; (b) any disclosure of CONFIDENTIAL Discovery Materials to the Court

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or any other court, jury, arbitrator or tribunal adjudicating claims between the

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Parties, except as may be limited by this Order; or (c) any disclosure of information

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that a Receiving Party has obtained lawfully from a source other than the

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Designating Party, even if the Designating Party has produced the same

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information and designated it as CONFIDENTIAL pursuant to this Protective

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Order.
12.2 This Protective Order may be modified by further order of this Court.

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Nothing contained herein shall be deemed to preclude any Party from waiving any

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protection afforded to it under this Protective Order, provided such waiver is in

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writing or is recorded in a transcript during deposition testimony.

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12.3 The Court shall retain jurisdiction over all persons bound by this

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Protective Order during the pendency of this action and for such time thereafter as

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is needed to carry out the terms of this Protective Order.

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12.4 If any Party who previously received CONFIDENTIAL Discovery

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Materials receives a subpoena or other compulsory process seeking the production

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of all or some of those materials, that Party or its counsel shall notify counsel for

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the Designating Party immediately in writing, via overnight mail, email or

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facsimile transmission, of the receipt of such compulsory process. Said Party shall

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provide counsel for the Designating Party with copies of that process and shall

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cooperate with respect to any procedure sought to be pursued by the Party whose

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interest may be affected. The Disclosing Party asserting the confidential treatment

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shall have the burden of defending against such subpoena, process or order.

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Subject to any reasonable procedure sought to be pursued by the Party whose

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interest may be affected, the person or Party receiving the subpoena or other
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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process or order shall be entitled to comply with it except to the extent the

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Disclosing Party asserting the confidential treatment is successful in obtaining an

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order modifying or quashing it.

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DATED: September 14, 2011

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_________________________________
Hon. Andrew J. Wistrich
Magistrate Judge of the
United States District Court

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Respectfully submitted:
George A. Shohet SBN 112697
LAW OFFICES OF GEORGE A. SHOHET,
A PROFESSIONAL CORPORATION
245 Main Street, Suite 310
Venice, CA 90291-5216
Tel.: [phone]
Fax: [phone]
Gretchen M. Nelson SBN 112566
KREINDLER & KREINDLER LLP
707 Wilshire Blvd, Suite 4100
Los Angeles, CA 90017
Tel.: [phone]
Fax: [phone]

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Attorneys for Plaintiff Southern California Institute of Law

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Nicholas W. Sarris, Esq.
KAUFMAN BORGEEST AND RYAN LLP
23975 Park Sorrento, Suite 370
Calabasas, CA 91302
Tel: [phone]

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION

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Fax: [phone]

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Attorneys for Defendant TCS Education System

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Maurice Fitzgerald, Esq.
STRAZULO FITZGERALD LLP
3991 MacArthur Blvd. Suite 400
Newport Beach, CA 92660
Tel.: [phone]
Fax: [phone]

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Attorneys for Defendants David J. Figuli and Global Equities, LLC

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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION