David Sigmund et al v. Chad Kroeger et al

Filing 39

STIPULATED PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 38 . (gr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID SIGMUND, ROBERT
MORFITT, ROBERT WAGNER, DON
BINNS, and TREVOR HAYHURST,
Plaintiffs,

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v.

CASE NO. CV11-00923 DMG (JEMx)
[PROPOSED] STIPULATED
PROTECTIVE ORDER
DISCOVERY MATTER

CHAD KROEGER, MIKE KROEGER,
RYAN PEAKE, DANIEL ADAIR,
BRANDON KROEGER, RYAN
VIKEDAL, EMI MUSIC CANADA, a
foreign corporation, ROADRUNNER
RECORDS, INC., a corporation and
WARNER CHAPPELL MUSIC, INC., a
California corporation, and DOES 1
through 10,

Judge: Honorable Dolly M. Gee
Magistrate Judge: John E. McDermott
File Date: January 31, 2011
Trial Date: September 18, 2012

Defendants.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve the
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 would be warranted. Accordingly, the Parties hereby
stipulate to and petition the Court to enter the following Stipulated Protective
Order. The Parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery, and that the protection it
affords extends only to the limited information or items that are entitled under the
applicable legal principles to treatment as confidential. The Parties further
acknowledge, as set forth in Section 10, below, that this Stipulated Protective
Order creates no entitlement to file confidential information under seal; Civil Local
Rule 79-5 sets forth the procedures that must be followed and reflects the standards
that will be applied when a Party seeks permission from the Court to file material
under seal. The parties further acknowledge that this Stipulated Protective Order
does not affect either Party’s right to use or disclose its own confidential,
proprietary, or private information, or documents or information that (i) are or at
any time were generally available to the public, (ii) were obtained from sources
other than through disclosure or discovery in this litigation, or (iii) were obtained
prior to execution by the Parties of this Stipulated Protective Order.

2.

DEFINITIONS
2.1

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

directors, employees, consultants, retained experts, and outside counsel (and their
support staff).
2.2

Disclosure or Discovery Material: all items or information,

regardless of the medium or manner generated, stored, or maintained (including,
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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among other things, testimony, transcripts, or tangible things) that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.3

“Confidential” Information or Items: information (regardless of

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how generated, stored or maintained) or tangible things that qualify for protection

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under standards developed under Fed. R. Civ. P. 26(c).

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2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or

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Items: extremely sensitive “Confidential Information or Items” whose disclosure

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

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could not be avoided by less restrictive means.

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2.5

Receiving Party: a Party that receives Disclosure or Discovery

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

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

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information or items that it produces in disclosures or in responses to discovery as

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“Confidential” or “Highly Confidential — Attorneys’ Eyes Only.”

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2.8

Protected Material: any Disclosure or Discovery Material that

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is designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes

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Only.” Protected Material does not include any Disclosure or Discovery Material

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that (i) is or at any time was generally available to the public, (ii) was obtained

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from sources other than through disclosure or discovery in this litigation, or (iii)

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was obtained prior to execution of this Stipulated Protective Order.

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2.9

Outside Counsel: attorneys who are not employees of a Party

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

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

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2.11 Counsel (without qualifier): Outside Counsel and House

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Counsel (as well as their support staffs).

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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

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serve as an expert witness or as a consultant in this action, and who is not a past or

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a current employee of a Party or of a competitor of a Party’s and who, at the time

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of retention, is not anticipated to become an employee of a Party or a competitor of

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a Party’s. This definition includes a professional jury or trial consultant retained in

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connection with this litigation.

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2.13 Professional Vendors: persons or entities that provide litigation

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

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demonstrations; organizing, storing, retrieving data in any form or medium; etc.)

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and their employees and subcontractors.

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3.

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The protections conferred by this Order cover not only Protected Material

SCOPE

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

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

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conversations, or presentations by Parties or Counsel to or in court or in other

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settings that might reveal Protected Material.

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4.

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Even after the termination of this litigation, the confidentiality obligations

DURATION

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

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otherwise in writing or a court order otherwise directs.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or non-party that designates information or items for

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protection under this Order must take care to limit any such designation to specific
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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

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

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

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

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

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified, or that have been made for an

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improper purpose (e.g., to unnecessarily encumber or retard the case development

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process, or to impose unnecessary expenses and burdens on other parties), expose

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the Designating Party to sanctions.
If it comes to a Party’s or a non-party’s attention that information or

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

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

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise

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

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

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

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Designation in conformity with this Order requires:
a.

For information in documentary form (apart from

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ATTORNEYS’ EYES ONLY” on each page that contains protected material. If

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

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

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

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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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transcripts of depositions or other pretrial or trial proceedings), that the Producing

of protection being asserted (either “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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A Party or non-party that makes original documents or

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materials available for inspection need not designate them for protection until after

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the inspecting Party has indicated which material it would like copied and

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produced. During the inspection and before the designation, all of the material

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made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order, then

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before producing the specified documents, the Producing Party must affix the

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appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”) at the top of each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins) and must specify, for each

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portion, the level of protection being asserted (either “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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b.

For testimony given in deposition or in other pretrial or

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

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testimony that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” When it is impractical to identify separately each portion of testimony

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that is entitled to protection, and when it appears that substantial portions of the

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testimony may qualify for protection, the Party or non-party that sponsors, offers,

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or gives the testimony may invoke on the record (before the deposition or

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proceeding is concluded) a right to have up to 20 days (beginning to run when the

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identify on the record, before the close of the deposition, hearing, or other

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trial proceedings, that the Party or non-party offering or sponsoring the testimony

testifying Party receives a transcript from the reporter) to identify the specific

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portions of the testimony as to which protection is sought and to specify the level
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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of protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY”). Only those portions of the testimony that are

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appropriately designated for protection within the 20 days shall be covered by the

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provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be

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separately bound by the court reporter, who must affix to the top of each such page

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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

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witness or presenting the testimony.

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c.

For information produced in some form other than

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documentary, and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information or item is stored the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portions, specifying whether they qualify as

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

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5.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items as “Confidential” or

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“Highly Confidential – Attorneys’ Eyes Only” does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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If material is appropriately designated as “Confidential” or “Highly Confidential –

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Attorneys’ Eyes Only” after the material was initially produced, the Receiving

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Party, on timely notification of the designation, must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Unless a prompt challenge to a

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Designating Party’s confidentiality designation is necessary to avoid foreseeable

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substantial unfairness, unnecessary economic burdens, or a later significant

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

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

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original designation is disclosed.

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6.2

Meet and Confer. A Party that elects to initiate a challenge to a

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

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

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

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances,

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

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designation. The Designating Party shall have 5 business days after the meet and

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confer to provide such explanation. A challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer

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process first.

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6.3

Judicial Intervention. A Party that elects to press a challenge to

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compliance with Civil Local Rule 79-5, if applicable) that identifies the challenged

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material and sets forth in detail the basis for the challenge. Each such motion must

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be accompanied by a competent declaration that affirms that the movant has

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complied with the meet and confer requirements imposed in the preceding

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paragraph and that sets forth with specificity the justification for the confidentiality

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Designating Party may file and serve a motion under Civil Local Rule 7 (and in

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a confidentiality designation after considering the justification offered by the

designation that was given by the Designating Party in the meet and confer

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process.
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The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Until the Court rules on the challenge, all Parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation.

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ACCESS TO USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

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Material that is disclosed or produced by another Party or by a non-party in

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connection with this case only for prosecuting, defending, or attempting to settle

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this litigation. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the litigation has

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

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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Party at a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order. Pages of transcribed deposition testimony or

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

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

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this Stipulated Protective Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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CONFIDENTIAL, as applicable, only to:

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a.

The Receiving Party and the Receiving Party’s Counsel

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of record in this action, as well as employees of said Counsel to whom it is

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reasonably necessary to disclose the information for this litigation;

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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b.

The officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this litigation;

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c.

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

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(1) to whom disclosure is reasonably necessary for this litigation, and (2) who have

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

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d.

The Court and its personnel;

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e.

Court reporters, their staffs, and professional vendors to

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whom disclosure is reasonably necessary for this litigation and who have signed
the “Agreement to Be Bound by Protective Order” (Exhibit A);

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f.

During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who, from the face of the document, appear

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to have previously authored or received it, and who have signed the “Agreement to

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Be Bound by Protective Order” (Exhibit A).

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g.

The author of the document or the original source of the

information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” Information or Items. Unless otherwise ordered by the Court or

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

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information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” only to:

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a.

The Receiving Party’s Outside Counsel of record in this

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action, as well as employees of said Counsel to whom it is reasonably necessary to

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disclose the information for this litigation;

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b.

House Counsel of a Receiving Party acting in a legal

capacity and to whom disclosure is reasonably necessary for this litigation;

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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c.

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

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(1) to whom disclosure is reasonably necessary for this litigation, and (2) who have

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

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d.

The Court and its personnel;

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e.

Court reporters, their staffs, and professional vendors to

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

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

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f.

The author of the document or the original source of the

information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in

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other litigation that would compel disclosure of any information or items

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designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY,” the Receiving Party must so notify the Designating

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Party, in writing (by fax or e-mail, if possible) immediately and in no event more

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than three court days after receiving the subpoena or order. Such notification must

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include a copy of the subpoena or court order.

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The Receiving Party also must immediately inform in writing the

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Party who caused the subpoena or order to issue in the other litigation that some or

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all the material covered by the subpoena or order is the subject of this Protective

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Order. In addition, the Receiving Party must deliver a copy of this Stipulated

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Protective Order promptly to the Party in the other action that caused the subpoena

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or order to issue.

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The purpose of imposing these duties is to alert the interested parties
to the existence of this Protective Order and to afford the Designating Party in this

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case an opportunity to try to protect its confidentiality interests in the court from
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which the subpoena or order issued. The Designating Party shall bear the burdens

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and the expenses of seeking protection in that court of its confidential material –

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

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

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately

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(a) notify in writing the Designating Party of the unauthorized disclosures, (b) use

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its best efforts to retrieve all copies of the Protected Material, (c) inform the person

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or persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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10.

FILING PROTECTED MATERIAL
Without written permission from the Designating Party or a court

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order secured after appropriate notice to all interested persons, a Party may not file

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in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must provide the Designating Party with a

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minimum of 5 days notice in addition to any notice required to secure a court order

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and must comply with Civil Local Rule 79-5. A Party that seeks to use or disclose

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any Protected Material, including information or documents, at any hearing or trial,

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must provide the Designating Party with a minimum of 5 days notice in addition to

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any applicable notice required by the Court.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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11.

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FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party,

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within sixty days after the final termination of this action, each Receiving Party

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must return all Protected Material to the Producing Party. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries or any other form of reproducing or capturing any of the Protected

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Material. With permission in writing from the Designating Party, the Receiving

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Party may destroy some or all of the Protected Material instead of returning it.

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Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or

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entity, to the Designating Party) by the sixty day deadline that identifies (by

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category, where appropriate) all the Protected Material that was returned or

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destroyed and that affirms that the Receiving Party has not retained any copies,

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abstracts, compilations, summaries or other forms of reproducing or capturing any

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, transcripts, legal

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

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

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

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(DURATION), above.

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12.

RETURN OF INADVERTENTLY PRODUCED MATERIALS
The disclosure or production of documents protected by the attorney-

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client privilege or work-product protection, whether inadvertent or not, will not

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constitute a waiver of the privilege or protection by the disclosing Party in either

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the litigation pending before the Court, or any other Federal or State proceeding.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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In the event that the Receiving Party discovers that it has received

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either attorney-client privilege or work-product protected documents, it will bring

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that fact to the attention of the Producing Party immediately upon discovery.

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In the event that the Producing Party discovers that it has produced

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either attorney-client privilege or work-product protected documents, it will bring

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that fact to the attention of the Receiving Party immediately upon discovery.

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Upon request by the Producing Party, the Receiving Party will

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promptly return to the Producing Party any attorney client privilege or work-

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product-protected document and any copies that the Receiving Party may have

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made.

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Upon request by the Producing Party, the Receiving Party will

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promptly disclose the names of any individuals who have read or have had access

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to the attorney-client privilege or work-product-protected document. Further, the

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Receiving Party must take reasonable steps to retrieve the information if the

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Receiving Party disclosed it before being notified.

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No such produced attorney-client privilege or work-product-protected
document may be used in evidence against the Producing Party.

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13.

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MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Order abridges the

right of any person to seek its modification by the Court in the future.

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//

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//

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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13.2 Right to Assert Other Objections. By stipulating to the entry of

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

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

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

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any ground to use in evidence of any of the material covered by this Protective

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Order.

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IT IS SO ORDERED.

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DATED: December 8, 2011

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/s/John E. McDermott
The Honorable John E. McDermott
United States Magistrate Judge

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

[print or type full name], of

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[print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Stipulated Protective

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Order that was issued by the United States District Court for the Central District of

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California on ______[date] in the case of Sigmund et al. v. Kroeger et al., Case No.

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CV11-00923 DMG (JEMx). I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order, and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person

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or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States

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

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terms of this Stipulated Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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I hereby appoint

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[print or type full name], of

[print or type full address and telephone number], as my

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California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name:

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Mitchell
Silberberg &
Knupp LLP
4321036.2

Signature:

_________________________________
[printed name]
_________________________________
[signature]

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[PROPOSED] STIPULATED PROTECTIVE ORDER