Susan Hufnagle v. Rino International Corporation et al

Filing 271

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 267 . (SEE ORDER FOR DETAILS) (rh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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STREAM SICAV, AND TODD
MARX, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS
SIMILARLY SITUATED,

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Plaintiffs,

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Case No.

CV 10-8695-DDP (VBKx)

CLASS ACTION
[PROPOSED] PROTECTIVE ORDER

v.
RINO INTERNATIONAL
CORPORATION, DEJUN ZOU,
JIANPING QIU, YI JENNY LIU, BEN
WANG, KENNITH C. JOHNSON,
XIE QUAN, WEIGUO ZHANG, LI
YU, AND FRAZER FROST, LLP f/k/a
MOORE STEPHENS WURTH
FRAZER AND TORBET, LLP,
Defendants.

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[PROPOSED] PROTECTIVE ORDER
10-CV-8695 DDP (VBKx)

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WHEREAS, Lead Plaintiffs and Defendant Frazer Frost LLP anticipate that

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information and documents may be disclosed by and among the parties in the court of

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discovery in the above-captioned action (“the Action”);

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WHEREAS, the parties believe that such information and documents may contain

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material that is of a confidential, sensitive, personal, commercial, or proprietary nature,

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and/or may contain material, including third-party material, as to which disclosure is

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restricted by applicable laws and regulations;

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WHEREAS, the Parties have stipulated and good cause appearing:

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IT IS HEREBY ORDERED that:

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1.

This Order shall apply to and govern all depositions, documents,

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information or things disclosed or produced in response to requests for production of

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documents, answers to interrogatories, responses to requests for admissions and all other

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discovery taken under the Federal Rules of Civil Procedure, and other information which

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the disclosing party designates as “CONFIDENTIAL” furnished, directly or indirectly,

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by or on behalf of any party or any non-party in connection with the above-captioned

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litigation.

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2.

When used in this Order, the phrase “disclosing party” shall refer to the

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parties to the above-captioned litigation or to non-parties who give testimony or produce

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documents or other material.

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3.

When used in this Order, the word “document” encompasses, but is not

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limited to, any type of document or testimony, including all documents or things

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described in Federal Rule of Evidence 1001(1)–(4) and/or Rule 34(a)(1)(A) or (B).

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4.

The disclosing party who designates any material “CONFIDENTIAL”

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(sometimes referred to herein as a “designating party”) bears the burden of establishing

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the “CONFIDENTIAL” status of such material in any situation in which the designation

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is at issue, and nothing in this Order shall be construed to alter such burden. The parties

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[PROPOSED] PROTECTIVE ORDER
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enter into and stipulate to this Order without prejudice to the rights of any party to assert

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or contest the “CONFIDENTIAL” status of any material as set forth below.

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5.

A disclosing party may designate as “CONFIDENTIAL” any trade secret

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or other confidential research, design, development, financial or commercial information,

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as such terms are used in Rule 26(c)(1)(G) and any applicable case law interpreting Rule

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26(c)(1)(G). In addition, a disclosing party may designate as “CONFIDENTIAL” non-

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public personal information or other information for which applicable federal or state law

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requires confidential treatment.

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6.

In designating material as “CONFIDENTIAL,” a disclosing party shall

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make such a designation only as to material which it in good faith believes is

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confidential.

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7.

Any party or non-party receiving any non-public material from a disclosing

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party, regardless of whether such material is designated as “CONFIDENTIAL,” shall use

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that material solely for the purpose of conducting this litigation and not for any other

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purpose whatsoever.

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8.

In the absence of written permission from the disclosing party, or an order

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of the Court, material designated as “CONFIDENTIAL” may be disclosed only to the

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following persons:

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a.

The named parties (which would include any proposed class

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representatives, but does not include unnamed putative class members) and the attorneys

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working on the above-captioned litigation on behalf of any party, including attorneys

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consulting with or advising any party to the above-captioned litigation, in-house

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attorneys, paralegals, and staff, stenographic and clerical employees and contractors

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working under the direct supervision of such counsel;

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b.

Any expert or consultant who is expressly retained by any attorney

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described in Paragraph 8(a) to assist in the above-captioned litigation, with disclosure

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only to the extent reasonably necessary to perform such work;

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[PROPOSED] PROTECTIVE ORDER
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c.

Any fact witness, including named parties, provided, however, that

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the witness (i) shall not retain any documents marked as “CONFIDENTIAL,” and (ii)

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shall be informed, prior to being shown materials marked as “CONFIDENTIAL” that

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he/she is being shown such materials solely for use in this Action; and

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d.

The Court, jury, court personnel, court reporters, and other persons

connected with the Court.

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9.

The persons described in Paragraphs 8(a)–(c) shall have access to

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“CONFIDENTIAL” material only after they have been made aware of the provisions of

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this Order (including, without limitation, Paragraph 7). Counsel retaining or representing

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the persons described in Paragraph 8(b) shall require that such persons manifest their

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assent to be bound by the provisions of this Order by signing a copy of the annexed

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“ACKNOWLEDGMENT.” The persons described in Paragraph 8(c) shall have access to

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“CONFIDENTIAL” material only after Counsel retaining, representing, interviewing or

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deposing those persons has provided a copy of this Order to such persons for review and

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requests (but shall not require) those persons to manifest their assent to be bound by the

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provisions of this Order by signing a copy of the annexed “ACKNOWLEDGMENT.”

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Counsel shall retain copies of the signed “ACKNOWLEDGMENT” forms until the

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completion of the above-captioned litigation. Any person receiving “CONFIDENTIAL”

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material is enjoined from disclosing that material to any other person, except in

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conformance with this Order. The parties shall act in good faith to eliminate, whenever

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possible, the expenditure of “on the record” time to effectuate or confirm compliance

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with this Paragraph at any deposition.

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10.

This Court shall retain jurisdiction over this Order, including any

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proceedings relating to performance under or compliance with the Order. Individuals who

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receive “CONFIDENTIAL” material shall be subject to this Order and to the jurisdiction

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of this Court concerning this Order.

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[PROPOSED] PROTECTIVE ORDER
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11.

The recipient of any “CONFIDENTIAL” material that is provided under

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this Order shall maintain such material in a secure and safe area and shall exercise the

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same standard of due and proper care with respect to the storage, custody, use and/or

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dissemination of such material as is exercised by the recipient with respect to its own

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proprietary material. “CONFIDENTIAL” material shall not be copied, reproduced,

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summarized, extracted or abstracted, except to the extent that such copying, reproduction,

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summarization, extraction or abstraction is reasonably necessary for the conduct of this

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lawsuit. All such copies, reproductions, summarizations, extractions, and abstractions

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shall be subject to the terms of the Order and labeled in the same manner as the

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designated material on which they are based.
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Disclosing parties shall designate “CONFIDENTIAL” material as follows:
a.

In the case of documents, interrogatory answers, responses to

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requests to admit, and the information contained therein, designation shall be made, as

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appropriate under the terms of this Stipulation and Order, by placing the following legend

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on each page of any such document: “CONFIDENTIAL.” In the event that a disclosing

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party inadvertently fails to stamp or otherwise designate a document or other material as

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“CONFIDENTIAL” at the time of its production, that disclosing party may stamp or

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otherwise designate the document or other material as “CONFIDENTIAL” at any

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reasonable time thereafter. The delay in designating a document as “CONFIDENTIAL”

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shall not, in and of itself, be deemed to have effected a waiver of any of the protections of

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this Order, but such document or other material shall be treated as “CONFIDENTIAL”

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only beginning at the time such designation occurs, provided, however, that the foregoing

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provision shall not apply to any documents or material that had already been made

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publicly available prior to the designation.

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b.

“CONFIDENTIAL” material may be used in depositions.

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Designation of the portion of the deposition transcript (including exhibits) that contains

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“CONFIDENTIAL” material shall be made by a statement to such effect on the record in

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[PROPOSED] PROTECTIVE ORDER
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the course of the deposition or, upon review of such transcript, by the disclosing party or

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counsel for the disclosing party to whose “CONFIDENTIAL” material the deponent has

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had access, which shall be so designated within twenty-one (21) days after the deposition.

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During those twenty- one days, the entire deposition transcript, including exhibits, shall

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be deemed “CONFIDENTIAL.”

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c.

Any “CONFIDENTIAL” material produced in a non-paper media

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(e.g., videotape, audiotape, computer disc, etc.) may be designated as such by labeling the

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outside of such non-paper media as “CONFIDENTIAL” and producing this material in a

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sealed envelope. In the event a receiving party generates any electronic copy, “hard

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copy,” transcription, or printout from any such designated non-paper media, such party

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must treat each copy, transcription, or printout as “CONFIDENTIAL” pursuant to the

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terms of this Order.

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Nothing in this Order shall be taken as indicating that any information is in

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fact “CONFIDENTIAL” or entitled to confidential treatment. No party shall be obligated

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to challenge the propriety of a “CONFIDENTIAL” designation at the time made, and a

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failure to do so shall not preclude a subsequent challenge thereto, nor shall a party that

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has designated materials or information as “CONFIDENTIAL” contend that any delay by

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another party in objecting to the designating party’s “CONFIDENTIAL” designation in

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any way (a) lends support to the designating party’s “CONFIDENTIAL” designation or

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(b) invalidates or diminishes in any way the objecting party’s challenge of the

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“CONFIDENTIAL” designation for any such materials or information. In the event that

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any party disagrees at any stage of these proceedings with such designation, counsel for

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such party shall notify counsel for the disclosing party in writing (the “Notice”). The

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objecting party shall identify each particular document bearing a designation to which it

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objects and shall specify the reason(s) for the objection, provided that the party

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challenging the “CONFIDENTIAL” designation may identify multiple documents by

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Bates number (whether in a range of consecutive numbers or otherwise) in its Notice

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[PROPOSED] PROTECTIVE ORDER
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when the reason or reasons for challenging the “CONFIDENTIAL” designation apply in

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the same manner to the documents identified in the Notice. Within seven (7) calendar

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days of the receipt of the Notice, counsel for the parties (and any non-party involved)

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shall promptly schedule a date and time to meet and confer to attempt resolve such

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dispute in good faith on an informal basis consistent with the requirement to confer in

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good faith under Rule 26(c)(1) and Rule 37(a)(1). If the dispute cannot be resolved, the

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party that designated the materials in question as “CONFIDENTIAL” may request

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appropriate relief from the Court, and the objecting party may also request any relief

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from the Court that it deems appropriate (which shall have first been raised no later than

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during the parties’ meet and confer session(s)) in its opposition to the designating party’s

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motion or other proposed method of seeking relief from the Court. The materials in

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question shall retain their “CONFIDENTIAL” status until the Court rules on any such

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motion so long as the party that designated the materials in question as

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“CONFIDENTIAL” seeks relief from the Court within: (i) thirty (30) days of the date the

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parties initially met and conferred, if the disagreement pertains to fewer than ten

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documents; or (ii) forty-five (45) days of the date the parties initially met and conferred,

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if the disagreement pertains to ten or more documents. The parties (and any non-party

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involved) may agree to extend the time for the disclosing party to apply to the Court for

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relief. If the designating party does not apply to the Court for a ruling on the designation

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of discovery material as “CONFIDENTIAL” within the time period prescribed herein or

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agreed to by the parties, the discovery material will no longer be deemed

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“CONFIDENTIAL.” Nothing in this Order shall alter the burden on the disclosing party

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to establish the “CONFIDENTIAL” status of information it has so designated.

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14.

Nothing contained in this Order shall be construed to limit any party’s right

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to use or offer in Court any “CONFIDENTIAL” information, except that no

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“CONFIDENTIAL” information shall be used or offered in Court or filed in the public

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record absent the consent of the disclosing party or permission of the Court.

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[PROPOSED] PROTECTIVE ORDER
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15.

Documents containing “CONFIDENTIAL” material shall not be filed with

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the Court unless the filing party reasonably believes it is reasonably necessary to do so

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for purposes of trial, motions (including without limitation, motions for class

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certification, preliminary injunction or summary judgment) or other Court matters.

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a.

Any party seeking to file information or materials designated

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CONFIDENTIAL with the Court shall lodge such material, in accordance with the

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requirements of the United States District Court, Central District of California Local Rule

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79-5, in a sealed envelope or other container bearing the words CONFIDENTIAL to be

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kept in a safe and secure place and not in files open to public inspection, along with an

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application setting forth good cause for the under seal filing. The envelope or other

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container shall bear the title of the action and a statement substantially in the following

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form:

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“This envelope contains documents and/or information which are

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subject to a Protective Order. This envelope is not to be opened except

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by the Court.”

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b.

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If the disclosing party is not the party filing the motion to seal, then

the disclosing party shall make the showing required in its response to the motion.

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c.

Any motion to seal filed under any subsection of this Paragraph 16

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shall be noted for consideration no earlier than the fourth Friday after filing and service

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of the motion. The Clerk of the Court shall maintain the “CONFIDENTIAL” materials

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under seal until the Court rules on the motion to seal, subject to the provisions of the

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following Paragraph 17.

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16.

In the event the Court denies a motion to seal documents labeled

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“CONFIDENTIAL,” the Clerk of the Court shall leave the documents under seal for a

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period of three (3) business days after the date of the Court’s denial of the motion to seal.

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If the filing party initially designated the documents “CONFIDENTIAL,” then within

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that three (3) day period, the filing party may, at its option, file replacement documents

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[PROPOSED] PROTECTIVE ORDER
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that do not contain “CONFIDENTIAL” material or any reference to “CONFIDENTIAL”

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material, in which case the documents initially filed under seal shall not be considered by

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the Court and shall remain under seal. If the filing party does not file replacement

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documents within the time period prescribed by this Paragraph, the material shall be filed

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unsealed in the Court file.

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17.

In the event that any “CONFIDENTIAL” material is used in any Court

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proceeding in connection with this litigation, it shall not lose its “CONFIDENTIAL”

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status through such use, and the parties shall take all steps reasonably required to protect

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its confidentiality during such use. In particular, while a motion to seal is pending and

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before the Court has ruled, no party shall make use in open court of any documents that

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are subject to that motion to seal without the consent of the designating party or the

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permission of the Court.

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18.

Notwithstanding the parties’ designation of “CONFIDENTIAL” material,

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any court hearing that refers to or describes Confidential information may be held in open

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court with records unsealed unless the Court orders, upon its own motion or upon a

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Party’s request, that the proceedings be conducted in camera, and any transcript relating

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thereto be designated as “CONFIDENTIAL.” Any Party who seeks to refer to or

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describe Confidential information at a court hearing , and/or have the records unsealed,

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shall provide the other Party(ies) seven days advance notice to allow the other Party(ies)

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an opportunity to seek appropriate relief to limit the publication of any Confidential

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information.

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19.

If “CONFIDENTIAL” material is disclosed to any person other than in the

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manner authorized by this Order, the person or party responsible for the disclosure must

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seasonably bring all pertinent facts relating to such disclosure to the attention of counsel

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for the disclosing party and, without prejudice to any other rights and remedies of the

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parties or non-parties, make every effort to prevent further disclosure by it or by the

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person who was the recipient of such material.

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20.

Nothing in this Order shall preclude any parties or non-parties to the

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lawsuit or their attorneys (a) from showing a document or part of a document designated

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as “CONFIDENTIAL” to an individual who either prepared the document or is identified

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on the face of the document as an addressee or copy addressee, or (b) from disclosing or

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using, in any manner or for any purpose, any material or documents from the disclosing

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party’s own files which the disclosing party itself has designated as “CONFIDENTIAL.”

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21.

In the event any receiving party having possession, custody or control of

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any “CONFIDENTIAL” material receives a subpoena, request for production of

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documents, or other process or order to produce such material in another, unrelated legal

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proceeding, from a non-party to the above-captioned litigation, such receiving party shall:

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a.

give prompt written notice of the subpoena, request for production of

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documents, or other process or order to counsel for the disclosing party that designated

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the material as “CONFIDENTIAL”;

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b.

furnish counsel for that disclosing party with a copy of said

subpoena, request for production of documents, or other process or order; and
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cooperate with respect to all reasonable and legitimate procedures

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sought to be pursued by the disclosing party whose interests may be affected. The

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disclosing party asserting the “CONFIDENTIAL” treatment shall have the burden of

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defending against such subpoena, process or order. The party receiving the subpoena,

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request for production of documents, or other process or order shall be entitled to comply

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with it except to the extent the disclosing party asserting the “CONFIDENTIAL”

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treatment is successful in obtaining an order modifying or quashing the subpoena, request

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for production of documents, or other process or order, provided, however, that the party

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receiving the subpoena, request for production of documents, or other process shall await

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the disposition of any motion to quash or motion for a protective order timely filed by the

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disclosing party before producing any “CONFIDENTIAL” information in response to the

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subpoena, request for production of documents, or other process or order.

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22.

The inadvertent production in the course of discovery in the above-

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captioned litigation of any documents or material (whether designated as

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“CONFIDENTIAL” or not) shall not be deemed to waive whatever attorney-client

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privilege, work product protection or other privilege or immunity that would otherwise

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attach to those documents or material produced or to other documents or material, so long

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as the disclosing party notifies the other party or parties of the claim of privilege or other

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protection or immunity. Upon receipt of such notice, all other parties shall (regardless of

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whether they agree with the disclosing party’s claim of privilege or protection) promptly:

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a.

destroy or segregate all copies of the inadvertently produced

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documents or material in such party’s possession, custody, or control, and notify the

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disclosing party that it has done so; and

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b.

notify the disclosing party that reasonable steps have been taken to

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retrieve and/or destroy the inadvertently produced documents or material from other

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persons to whom such documents or material have been provided, if any, consistent with

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Rule 26(b)(5)(B). Compliance with this Paragraph 22 does not, and shall not be deemed

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to, constitute agreement that the claimed document or material is in fact privileged or

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entitled to protection or immunity.

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23.

The parties shall comply with their ethical and legal obligations concerning

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the actual or apparent inadvertent production of privileged or protected information,

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including by notifying promptly a disclosing party when appropriate.

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24.

After the conclusion of the above-captioned litigation, including final

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appellate action or the expiration of time to appeal or seek further review, all non-public

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material produced by any disclosing party, regardless of whether it has been designated

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“CONFIDENTIAL,” and all copies thereof, shall be maintained in a manner which will

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prevent the disclosure of such documents to persons not authorized to see them under the

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terms of this Order. Documents filed under seal on ECF shall remain under seal unless or

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until they are destroyed pursuant to the Court’s document retention policy.

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25.

limitations of this Order shall survive the termination of the above-captioned litigation.

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Except as specifically provided herein, the terms, conditions, and

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This Order is without prejudice to the right of any party or non-party to

seek relief from the Court from any of the provisions contained herein.

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27.

This Order shall not be construed as waiving any right to assert a claim of

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privilege, relevance, overbreadth, burdensomeness or other grounds for not producing

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material called for, and access to all material (whether designated as “CONFIDENTIAL”

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or not) shall be only as provided by the discovery rules and other applicable law.

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28.

No party shall produce or be requested to produce or identify any material

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or information that the party is prohibited by law from disclosing under 31 U.S.C. §

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5318(g), 31 CFR 103.18(e), 12 CFR 510.5 or any similar law, regulation, rule or court

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order.

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29.

The parties will abide by all Court orders and statutory provisions

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(including applicable law and/or court orders concerning such provisions) concerning the

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eligibility of each party to receive documents or other material through discovery. Any

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party that is eligible to receive such documents or material shall not provide any

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documents or material, or information that is contained in or derived from such

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documents or material, to any other party unless the other party also is eligible to receive

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such documents or material. Nothing in this Paragraph, however, shall be read to prevent

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the parties from filing documents in support of or in opposition to motions in this Court.

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IT IS SO ORDERED.

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DATED: January 30, 2014

/s/
Honorable Victor B. Kenton
United States Magistrate Judge

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EXHIBIT A
I have read and understand the Protective Order entered in the matter of Stream

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SICAV v. RINO International Corp., et al., Case No. 10-CV-8695 DDP (VBK), and agree

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to be bound by and abide fully with the terms of such order. I further understand that

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failure to ABIDE fully with the terms of such Protective Order may lead to sanctions

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being imposed by the court. I declare under penalty of perjury under the laws of the

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United States that the foregoing is true and correct.

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_________________________________
Signature
_________________________________
Name (Printed)

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_________________________________
Date

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