City of Pomona v. Sociedad Quimica Y Minera De Chile SA et al

Filing 22

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton, Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the Court issues the following Protective Order Regarding Confidential Information. This Protective Order does not confer blanket protections on all disclosure s or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information that is entitled to confidential treatment under the applicable legal principles. This Protective Order does not entitle the parties to file confidential information under seal. re Stipulation for Protective Order 20 , Notice (Other) 21 (SEE ORDER FOR FURTHER DETAILS) (lmh)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19

Case No. 11-CV-00167-RGK-VBK

CITY OF POMONA,

)
)
Plaintiff,
)
)
)
vs.
)
)
)
SOCIEDAD QUIMICA Y MINERA )
)
DE CHILE S.A.; SQM NORTH
AMERICA CORPORATION; AND )
DOES 1 through 200, INCLUSIVE, )
)
)
Defendants.
)
)
)

PROTECTIVE ORDER
REGARDING CONFIDENTIAL
INFORMATION

20
21

1.

22

Disclosure and discovery activity in this action are likely to involve

23

production of confidential, proprietary, or private information for which special

24

protection from public disclosure and from use for any purpose other than

25

prosecuting this litigation may be warranted. Accordingly, the Court issues the

26

following Protective Order Regarding Confidential Information. This Protective

27

Order does not confer blanket protections on all disclosures or responses to

28

discovery and that the protection it affords from public disclosure and use extends

PURPOSE AND LIMITATIONS

1
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

only to the limited information that is entitled to confidential treatment under the

2

applicable legal principles. This Protective Order does not entitle the parties to file

3

confidential information under seal.

4
5

2.

DESIGNATING CONFIDENTIAL INFORMATION
2.1

For purposes of this Protective Order, “CONFIDENTIAL

6

INFORMATION” is information, designated as such in accordance with the

7

provisions herein, that the designating party in good faith believes contains

8

personal, commercial, financial, proprietary, or other confidential information.

9

Such CONFIDENTIAL INFORMATION includes information that:

10

a.

Concerns or relates to the processes, operations, work, or

11

apparatus, or to the production, sales, shipments, purchases,

12

transfers, identification of customers, inventories, amount or

13

sources of any income, profits, losses, or expenditure, of any

14

persons, firm, partnership, corporation, or other organization,

15

the disclosure of which information may have the effect of

16

causing harm to the competitive position of the person, firm,

17

partnership, corporation, or to the organization from which the

18

information was obtained.

19

b.

Is produced or disclosed by a municipality or any federal, state

20

or local agency and which discloses or constitutes:

21

(i)

the physical address or geographic location of public

22

drinking water wells, storage facilities, pumping stations

23

and water treatment facilities;

24

(ii)

water system schematics and facility maps;

25

(iii)

pipeline maps;

26

(iv)

facility plans and specifications;

27

(v)

water system vulnerabilities which have not been

28

publicly disclosed;

2
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

(vi)

2

(vii) emergency operations and response plans; or

3

(viii) water system security plans, practices and/or precautions,

4
5
6
7

including planned security enhancements.
2.2

CONFIDENTIAL INFORMATION protected by this

Protective Order shall not include information that is:
a.

Lawfully received by a party from a source other than the party

8
9

water system hydraulics or operational practices;

asserting the claim of confidentiality; or
b.

Public knowledge or information, or information that becomes

10

public after disclosure other than through an act or omission of

11

a person or entity receiving or maintaining the information

12

designated as confidential.

13

2.3

Information may only be designated “CONFIDENTIAL

14

INFORMATION” if it has been reviewed by an attorney and if that attorney

15

entertains a good faith belief that the information is entitled to confidentiality as

16

defined in section 2.1.

17

2.4

Produced Documents. A party producing a document in formal

18

or informal discovery that it, in good faith, believes constitutes or contains

19

CONFIDENTIAL INFORMATION shall produce a copy of such document with a

20

label that states “CONFIDENTIAL INFORMATION” on the face of each page of

21

the document. As used herein, the term “document” includes all writings,

22

electronically stored information and tangible things subject to production under

23

Federal Rule of Civil Procedure 34(a)(1). Any party receiving a document labeled

24

as CONFIDENTIAL INFORMATION is responsible for maintaining the

25

document as CONFIDENTIAL INFORMATION pursuant to this Protective Order.

26

2.5

Written Discovery. If a party responding to an interrogatory or

27

other written discovery believes that its response contains CONFIDENTIAL

28

INFORMATION, it shall set forth its response in a separate document that is

3
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

produced and designated as CONFIDENTIAL INFORMATION in the same

2

manner as a produced document under section 2.4. The non-designated responses

3

should make reference to the separately produced document containing the

4

responses with CONFIDENTIAL INFORMATION, but such document should not

5

be attached to the non-designated responses.

6

2.6

Deposition Transcripts. Unless otherwise agreed to by the

7

parties or ordered by the Court, within 30 days after the receipt of a deposition

8

transcript (or if the transcript is received within 30 days of the date set for the

9

beginning of trial, within half of the number of days remaining before the date set

10

for the beginning of trial), a party may inform the other parties to the action of the

11

portions of the transcript that it wishes to designate as CONFIDENTIAL

12

INFORMATION. Until such time has elapsed, deposition transcripts in their

13

entirety are to be considered as CONFIDENTIAL INFORMATION. All parties in

14

possession of a copy of a designated deposition transcript shall appropriately mark

15

the transcript cover and the designated pages as containing CONFIDENTIAL

16

INFORMATION.

17

2.7

Information Designated “Confidential” in Other Litigation. A

18

party responding to discovery shall not withhold or object to the production of

19

information in its possession, custody or control on the grounds that such

20

information is or may be subject to a confidentiality or protective order entered in

21

another proceeding, unless the information in question (a) was designated

22

“confidential” in such other proceeding by an entity other than the responding

23

party and (b) remains subject to the confidentiality or protective order in the other

24

proceeding, in which case the responding party may withhold the information, but

25

shall provide the requesting party with the identity of the entity that designated the

26

information “confidential,” along with a description of the information sufficiently

27

detailed to enable the requesting party to obtain such information directly from the

28

designating entity.

4
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

3.

2

CHALLENGING CONFIDENTIALITY DESIGNATIONS
3.1

Timing of Challenges. Any party or non-party may challenge a

3

designation of confidentiality at any time. Unless a prompt challenge to a

4

designating party’s confidentiality designation is necessary to avoid foreseeable,

5

substantial unfairness, unnecessary economic burdens, or a significant disruption

6

or delay of the litigation, a party does not waive its right to challenge a

7

confidentiality designation by electing not to mount a challenge promptly after the

8

original designation is disclosed.

9

3.2

Meet and Confer. The party challenging a designation of

10

CONFIDENTIAL INFORMATION shall notify the designating party in writing.

11

The challenging and the designating parties shall promptly confer in an attempt to

12

resolve their differences. If the designating and challenging parties are unable to

13

resolve their differences, the designating party shall have twenty-one (21) calendar

14

days from the receipt of the written objection to file with the court a motion to

15

retain confidentiality. The designating party shall have the burden of proof on any

16

such motion to justify the CONFIDENTIAL INFORMATION designation. All

17

documents initially designated as CONFIDENTIAL INFORMATION shall

18

continue to be subject to this order unless and until the Court rules otherwise or the

19

parties so agree in writing. If a designating party elects not to make a motion to

20

retain confidentiality with respect to documents to which a challenge has been

21

made, it shall be deemed to have withdrawn its designation and shall send a copy

22

of the previously designated documents without the CONFIDENTIAL

23

INFORMATION designation to each party to whom the previously designated

24

documents were originally produced.

25
26

4.

ACCESS TO AND USE OF CONFIDENTIAL INFORMATION
4.1

Authorized Disclosures. Unless otherwise agreed by the parties

27

or ordered by the Court, CONFIDENTIAL INFORMATION shall be disclosed by

28

the receiving party only to the following persons:

5
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

a.

Attorneys of record in this proceeding, including their

2

necessary associates, paralegals, clerks, and secretarial and

3

clerical personnel;

4

b.

In-house counsel and their staff and those employees of a party

5

designated by in-house counsel to assist with the prosecution or

6

defense of the included actions.

7

c.

8
9

and necessary stenographic, videotape and clerical personnel;
d.

10
11

Qualified persons taking testimony involving such information,

Trial experts, expert consultants and their staffs who are
consulted by counsel for a receiving party;

e.

Deponents and witnesses who already know the

12

CONFIDENTIAL INFORMATION being disclosed (as

13

confirmed through counsel in advance of any disclosure to the

14

deponent or witness and/or as demonstrated by the deponent or

15

witness being clearly shown as an author or prior recipient of

16

the CONFIDENTIAL INFORMATION on the face of the

17

document to be disclosed);

18

f.

Discovery masters or settlement judges appointed by the Court

19

or agreed to between the parties, who are engaged in

20

proceedings connected with this action, and personnel regularly

21

employed by them;

22
23
24

g.

The Court, Court staff and other personnel before which this
proceeding and/or any related action is pending.

A party may provide CONFIDENTIAL INFORMATION to authorized

25

persons designated in sections 4.1(d) and 4.1(f) above only if such persons

26

acknowledge in writing that they have read this Protective Order and agree to be

27

bound by its terms. (A form of such acknowledgment is attached hereto as Exhibit

28

A.) Such written acknowledgment shall not be discoverable in this proceeding or

6
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

any action included therein. Each party takes responsibility for ensuring that all

2

authorized recipients of CONFIDENTIAL INFORMATION are informed of and

3

agree to this Protective Order. Any disclosures under this section are authorized

4

only to the extent necessary to prosecute or defend this litigation.

5

4.2

Unauthorized Disclosures. If CONFIDENTIAL

6

INFORMATION is disclosed to any person other than in the manner authorized by

7

this Protective Order, the party or person responsible for the disclosure, and any

8

other party or person who is subject to this order and learns of such disclosure

9

(including without limitation all employees, officers, directors, agents and

10

attorneys of each party to this lawsuit), shall immediately bring such disclosure to

11

the attention of the designating party. Without prejudice to other rights and

12

remedies of the designating party, the responsible party or person shall make every

13

reasonable effort to obtain the return of the CONFIDENTIAL INFORMATION

14

and to prevent further disclosure on its own part or on the part of the person who

15

was the unauthorized recipient of such information.

16

4.3

Court Filings. If a party wishes to file a document that it has

17

designated as containing CONFIDENTIAL INFORMATION, that party shall file a

18

motion to seal and follow all applicable local rules. If a party wishes to file a

19

document containing CONFIDENTIAL INFORMATION designated by another

20

party, the submitting party must: (a) lodge the document, memorandum or other

21

document in sealed envelopes or containers on which shall be recorded the title of

22

this action, the general nature of the contents, and the notation “DOCUMENT

23

SUBMITTED UNDER SEAL”; (b) lodge with the Clerk for delivery to the

24

Judge’s chambers a second copy of the entire document, in an identical labeled

25

envelope or container, with the sealable portions identified; and (c) file and serve a

26

Notice of Request to Seal Documents. Within five (5) court days thereafter, the

27

designating party must file and serve a Request to Seal Documents setting forth the

28

statutory or other authority for sealing, the requested duration, the identity, by

7
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

name or category, of the persons to be permitted access to the documents, and all

2

other relevant information. If the designating party does not file a Request to Seal

3

Documents within this time period, the document or proposed filing will be made

4

part of the public record absent a showing of good cause.

5

5.

6

CONFIDENTIAL INFORMATION which is subject to this Order, and

USE OF CONFIDENTIAL INFORMATION AT TRIAL

7

deemed admissible as trial evidence by the court, may be marked and used as trial

8

exhibits by a party according to the terms imposed by the trial court upon the

9

request of a designating party at time of trial. It is the intent of the parties hereto

10

that CONFIDENTIAL INFORMATION will not be disclosed or available to any

11

other parties or third persons, other than authorized disclosures as stated in section

12

4.1 above, without the consent of the designating party and/or the Court.

13
14
15

6.

RETURN OF CONFIDENTIAL INFORMATION AFTER FINAL
DISPOSITION

Each receiving party must return all CONFIDENTIAL INFORMATION or

16

destroy such material within forty-five (45) days after final disposition of the

17

lawsuit, as defined in section 9 below, although CONFIDENTIAL

18

INFORMATION disclosed in this action may be used in the action entitled City of

19

Lindsay v. Sociedad Quimica y Minera de Chile S.A., et al., U.S.D.C., Eastern

20

District of California, Case No. 1:11-CV-00046-LGO-SMS, subject to the

21

Protective Order in place in that action, including the obligation to return or

22

destroy all CONFIDENTIAL INFORMATION within forty-five (45) days after

23

final disposition of that action. Notwithstanding this provision, counsel are entitled

24

to retain an archival copy of all pleadings, motion papers, legal memoranda,

25

correspondence, expert reports, attorney work product, and consultant and expert

26

work product, even if such material contain CONFIDENTIAL INFORMATION.

27

Any such archival copies that contain or constitute CONFIDENTIAL

28

INFORMATION remain subject to this Protective Order.

8
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

7.

2
3

CONFIDENTIAL INFORMATION SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

If a receiving party is served with a subpoena, request, or court order issued

4

in other litigation that compels disclosure of any information or items designated in

5

this action as CONFIDENTIAL INFORMATION, that party must:

6

a.

7

Promptly notify in writing the designating party, including a
copy of the subpoena, request or court order;

8

b.

9

Promptly notify in writing the party seeking the
CONFIDENTIAL INFORMATION that some of the requested

10

information is subject to this Protective Order, and provide a

11

copy of this Protective Order; and

12

c.

Cooperate with respect to all reasonable procedures sought to

13

be pursued by the designating party whose CONFIDENTIAL

14

INFORMATION may be affected.

15

If the designating party timely seeks a protective order, the party served with

16

the subpoena, request or court order shall not produce any information designated

17

in this action as CONFIDENTIAL INFORMATION before a determination by the

18

court from which the subpoena, request, or order issued, unless the party has

19

obtained the designating party’s permission. The designating party shall bear the

20

burden and expense of seeking protection in that court of its confidential material,

21

and nothing in these provisions should be construed as authorizing or encouraging

22

a receiving party in this action to disobey a lawful directive from another court.

23

8.

24

The inadvertent production of any privileged or otherwise protected or

25

exempted information, as well as the inadvertent production of information without

26

an appropriate designation of confidentiality, shall not be deemed a waiver or

27

impairment of any claim of privilege, protection or confidentiality, including but

28

not limited to the attorney-client privilege, the protection afforded to work product

INADVERTENT DISCLOSURE OR PRODUCTION

9
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

materials or the subject matter thereof, or the confidential nature of any such

2

information, provided that the producing party shall immediately notify the

3

receiving party in writing when inadvertent production is discovered. Upon

4

receiving written notice from the producing party that privileged information, work

5

product material or CONFIDENTIAL INFORMATION has been inadvertently

6

produced, all such information, and all copies thereto shall be kept by counsel for

7

the receiving party and counsel shall not use such information for any purpose until

8

further order of the Court, or until the producing and receiving parties have agreed

9

upon a satisfactory resolution of the inadvertently produced information. The

10

producing party may then, if necessary, move the court for an order compelling

11

return of the material. Any analyses, memoranda or notes which were internally

12

generated based upon such inadvertently produced information shall immediately

13

be treated in conformance with the protected nature of the information.

14

9.

15

Even after final disposition of this lawsuit, the confidentiality obligations

16

imposed by this Protective Order shall remain in effect until a designating party

17

agrees otherwise in writing or a court order otherwise directs. Final disposition

18

shall be deemed to be the later of (1) dismissal of all claims and defenses in this

19

action, with or without prejudice; and (2) final judgment herein after the

20

completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

21

this action, including the time limits for filing any motions or applications for

22

extension of time pursuant to applicable law. The Court shall retain jurisdiction to

23

resolve any dispute concerning this agreement or the CONFIDENTIAL

24

INFORMATION even after final disposition of this lawsuit.

25

DURATION

IT IS SO ORDERED.

26
27
28

DATED: June 2, 2011

/s/
Honorable Victor B. Kenton
UNITED STATES MAGISTRATE JUDGE

10
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _______________[print or type full name], of _______________[print or

4

type full address], declare under penalty of perjury that I have read in its entirety

5

and understand the Protective Order Regarding Confidential Information that was

6

issued by the United States District Court for the Central District of California on

7

____________[date] in the case of City of Pomona v. Sociedad Quimica y Minera

8

de Chile S.A., et al, Case No. 1:11-CV-00167-RGK-VBK. I agree to comply with

9

and to be bound by all the terms of this Stipulated Protective Order, and I

10

understand and acknowledge that failure to so comply could expose me to

11

sanctions and punishment in the nature of contempt. I solemnly promise that I will

12

not disclose in any manner any information or item that is subject to this Protective

13

Order to any person or entity except in strict compliance with the provisions of this

14

Order. I further agree to submit to the jurisdiction of the United States District

15

Court for the Central District of California for the purpose of enforcing the terms

16

of this Protective Order, even if such enforcement proceedings occur after

17

termination of this action.

18
19

Date: _________________________________

20

City and State where sworn and signed: _________________________________

21

Printed name: ______________________________

22

Signature: _______________________________

23
24
25
26
27
28

1
EXHIBIT A