J2 Global Communications Inc et al v. Fax87.com et al

Filing 43

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 42 . See document for details. (yb)

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Robert A. Sacks (SBN 150146)
[e-mail]
Brian R. England (SBN 211335)
[e-mail]
Edward E. Johnson (SBN 241065)
[e-mail]
SULLIVAN & CROMWELL LLP
1888 Century Park East, Suite 2100
Los Angeles, California 90067-1725
Tel.: [phone]
Fax: [phone]
Attorneys for Plaintiffs j2 Global Communications,
Inc. and Advanced Messaging Technologies, Inc..

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:11-CV-02618 DDP (AJWx)
J2 GLOBAL COMMUNICATIONS,
INC. and ADVANCED MESSAGING
TECHNOLOGIES, INC.,

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PROTECTIVE ORDER

Plaintiff,

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v.

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FAX87.COM, FARJAD FANI and
MATT JOHNSON FINANCE INC.,

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Defendant.

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AND RELATED CROSS-ACTION

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[PROPOSED] PROTECTIVE ORDER
001\1739971.2

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The parties to this action stipulate to, and seek entry of, the following
Protective Order:

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1.

“Confidential” information is information that, in good faith, a

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party believes to contain (a) proprietary or commercially sensitive information

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which is not publicly known and which its owner would not reveal to others except

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in confidence; (b) personal financial information; or (c) information that should

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otherwise be subject to confidential treatment under the Federal Rules of Civil

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Procedure. If a person, including a third party, producing information under this

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Order (the “Producing Person”) designates information as “Confidential,” the

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designated information shall be treated as Confidential unless successfully

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challenged under ¶ 11. When producing documents, the Producing Person shall

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mark each page containing Confidential information as “Confidential.”

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2.

“Restricted Confidential” information shall be limited to

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information that, in good faith, a party believes to contain (a) current and past

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business planning and financial information; (b) trade secrets; (c) past or current

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company personnel or employee information; (d) source code; and (e) information

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concerning a party’s sales or the design, structure or workings of a party’s products

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or systems which would, if it became known to other parties, harm the competitive

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position of its owner. If a Producing Person designates information as Restricted

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Confidential under this Order, the designated information shall be treated as

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Restricted Confidential unless successfully challenged under ¶ 11.

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producing documents, the Producing Person shall mark each page containing

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Restricted Confidential information as “Restricted Confidential” or “Attorneys

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Eyes Only.” For avoidance of doubt, documents marked “Attorneys Eyes Only”

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shall be treated as Restricted Confidential materials under the terms of this

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Protective Order.

When

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[PROPOSED] PROTECTIVE ORDER
001\1739971.2

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3.

Any Producing Person, whether or not a party to this action,

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may designate information as Confidential or Restricted Confidential under this

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Order.

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4.

When a document is designated as Confidential or Restricted

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Confidential, the designation includes not only the document so designated, but

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also any information derived from that document, and any copies, excerpts,

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summaries, or compilations thereof.

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5.

A person receiving information under this Order (the “Receiving

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Person”) shall use Confidential or Restricted Confidential information (together,

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“Protected Information”) only to conduct this litigation or any other litigation

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between or among parties to this action, provided that such other litigation does not

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involve any party that is not a party to this action.

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6.

By receiving information under this Order, all Receiving

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Persons agree to be subject to the jurisdiction of this Court concerning their use of

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Protected Information. All receiving persons other than attorneys, their staff, and

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independent companies engaged by outside litigation counsel to perform litigation

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support service, shall sign an acknowledgment in the form attached hereto as

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Exhibit A, indicating that they have read and understood the terms of this Order and

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agree to submit to the jurisdiction of the Central District of California for

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enforcement of this Order.

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acknowledgments, and will produce the same to the opposing party when so

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ordered by the Court.

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7.

Counsel for each party shall maintain all original

A Receiving Person may disclose Restricted Confidential

information only to the following:

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a. outside litigation counsel retained by a party in this action, including

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attorneys, their staff, and independent companies engaged by outside

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litigation counsel to perform litigation support services;

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[PROPOSED] PROTECTIVE ORDER

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b. independent experts or consultants retained by outside litigation

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counsel;

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c. any person giving testimony in this action at deposition, trial or

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hearing, but only if the person giving testimony is the creator, author or

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recipient of the Restricted Confidential information; provided that such

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persons may not retain any documents containing Restricted Confidential

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information provided to them at such deposition, trial or hearing;

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d. the Court, its personnel and any court reporters involved in taking or

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transcribing testimony in this action; and

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e. any other person by written agreement of the parties or by order of the

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Court.

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8.

A Receiving Person may disclose Confidential information only

to the following:

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a. persons listed in ¶ 7; and

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b. any person giving testimony in this action at deposition, trial or

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hearing witnesses, but only for purposes of reasonable, material, and

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relevant testimony or preparation of such testimony in the litigation,

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provided that such persons may not retain any documents containing

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Protected Information; and

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c. employees of the Receiving Person to whom disclosure is reasonably

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necessary for the management, supervision, or oversight of the litigation.

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9.

Before a Receiving Person can share Protected Information

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received from another party in the litigation with an independent expert or

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consultant under ¶ 7.b, the Receiving Person shall provide the Producing Person

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written notice of its intention, which shall include the proposed expert’s curriculum

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vitae as well as a list of any previous or current relationship with any party to this

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action. If the Producing Person objects to the disclosure, it must send a written

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objection, including a detailed explanation of its objection, that is received within
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[PROPOSED] PROTECTIVE ORDER

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ten business days after the Producing Person’s receipt of the written notice. Absent

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a timely written objection, the Receiving Person may share Protected Information

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with the independent expert. If the Producing Person makes a timely written

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objection, the Receiving Person shall not share Protected Information with the

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independent expert until the objection is resolved by agreement or by the Court. If

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the parties cannot resolve this dispute, they may proceed under the Local Rules

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addressing discovery disputes, with the Producing Person bearing the burden of

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promptly filing a motion and establishing good cause to support its objection. A

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producing party shall not seek discovery with respect to a consultant or other non-

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testifying expert of a party who has received Protected Information, absent a Court

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order pursuant to a motion made by the producing party.

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10.

If not so designated in the transcript, deposition testimony shall

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be deemed Restricted Confidential until thirty days following the reporter’s

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distribution of the final transcript. During those thirty days, a Producing Person

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may designate portions of the transcript under ¶ 1 or ¶ 2 by sending written

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designations to all parties to this action.

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11.

If a Receiving Person disagrees with a designation of

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information under ¶ 1 or ¶ 2, it shall provide the Producing Person written notice of

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its challenge. If the parties cannot resolve this dispute, the Receiving Person may

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bring a motion challenging the designation under the Local Rules addressing

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discovery disputes, with the Producing Person bearing the burden of showing that

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the information is Confidential or Restricted Confidential. Failure to challenge a

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designation immediately does not waive a Receiving Person’s ability to bring a

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later challenge.

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13. If a Producing Person inadvertently fails to designate material as

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Protected Information at the time of production, it shall notify all Receiving

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Persons of its failure as soon as possible after discovery. The Producing Person

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[PROPOSED] PROTECTIVE ORDER

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shall promptly supply all Receiving Persons with new copies of any documents

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bearing corrected confidentiality designations.

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14.

Any discovery documents produced in this litigation may be

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later designated as “Attorney Client Privileged” or “Attorney Work Product”

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promptly upon discovery by the Producing Person that any such privileged or

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immune document was produced through inadvertence, mistake, or other error, and

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no waiver of privilege or immunity shall be deemed to have occurred. Upon such

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designation, the Receiving Person promptly shall make best efforts to collect all

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copies of the documents and return them to the Producing Person.

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In the event that any Protected Information is used in any

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proceeding in connection with this litigation, it shall not lose its Confidential or

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Restricted Confidential status through such use, and the parties shall take all steps

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reasonably required to protect its confidentiality during such use.

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16.

To the extent that any Confidential or Restricted Confidential

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information subject to this Protective Order (or any pleading, motion, or

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memorandum referring to them) is proposed to be filed or is filed with the Court,

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those materials and papers, or any portion thereof which discloses Confidential or

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Restricted Confidential information, shall be presented to the judge (by the filing

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party) accompanied by an application to file under seal in accordance with the

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procedures set forth in Local Rule 79-5.1 and shall be marked “CONFIDENTIAL

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INFORMATION FILED UNDER SEAL” on the outside of the sealing envelopes;

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such application shall be directed to the judge to whom the papers are directed.

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Pending a ruling on the application submitted in accordance with Local Rule 79-

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5.1, the papers or portions thereof subject to the application shall be lodged under

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seal. However, only those portions of filings containing Confidential or Restricted

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Confidential information shall be filed under seal. The filing party shall also file

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with the Court for regular filing a redacted version of any filing submitted under

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Local Rule 79-5.1 in which any Confidential and/or Restricted Confidential

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information shall be redacted.

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17.

Nothing in this Order precludes any person from disclosing or

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using in any manner its own information, or information not obtained under this

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Order, even if the same information is also produced under this Order.

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Nothing in this Order precludes any person from showing a

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document containing Protected Information to an individual who prepared or

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received the document, or from disclosing Protected Information to a current

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employee, officer or director of the Producing Person.

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No information may be withheld from discovery on the ground

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that the material to be disclosed requires protection greater than that afforded by

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this Protective Order unless the party claiming a need for greater protection moves

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for an order providing such special protection pursuant to Rule 26(c) and Local

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Rules 37-1 through 37-4.

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20.

The Parties acknowledge and agree that nothing in this

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protective order is intended to be construed inconsistently with the rights and

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obligations of the Parties under Local Rules 37-1 through 37-4 governing

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cooperation during discovery, and that, in the event of any inconsistency, the

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procedures defined by the Local Rules shall govern. If the Parties wish to file the

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Joint Stipulation (or portions thereof) required by Local Rule 37-2 under seal, the

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Parties may file a separate stipulation to that effect, or the moving party may file an

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ex parte application making the appropriate request. The Parties acknowledge and

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agree that the stipulation or ex parte application must demonstrate good cause as to

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why the Joint Stipulation or portions thereof should be filed under seal.

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21.

Within sixty days of the termination of litigation between the

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parties, all Protected Information shall be destroyed or returned to the Producing

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Person, except that one designated outside litigation counsel of record for each

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party may maintain in its files one copy of each deposition transcript, each
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[PROPOSED] PROTECTIVE ORDER

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document filed with the Court, and each correspondence transmitted between

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outside counsel for the parties to this action.

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So ORDERED AND SIGNED this _27th_day of October, 2011.

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/s/
HON. ANDREW J. WISTRICH
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] PROTECTIVE ORDER

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EXHIBIT A

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CERTIFICATE OF COMPLIANCE

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I,

(print name), declare as follows:

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I certify that I have received a copy of the Stipulated Protective Order (“Order”) in

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the matter captioned j2 Global Communications, Inc., et al. v. Fax87.com, et al.

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United States District Court for the Central District of California, Case No. CV-11-

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2618 DDP (AJWx), which governs the production and use of Protected

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Information in this case. I have read and understand the Order. I hereby

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acknowledge that I am bound by the Order, and I agree to abide by it. I further

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understand that the Protected Information many only be used in strict accordance

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with the terms of the Order and then only for the prosecution and defense of this

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litigation.

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I further acknowledge that I may be held responsible for any failure on my

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part to comply with the provisions of the Order, and I agree to subject myself to the

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jurisdiction of the United States District Court for the Central District of California,

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for the purpose of enforcing the Order.

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I hereby declare under penalty of perjury that the foregoing is true and
correct.

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(Signature)

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(Print Name)

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[PROPOSED] PROTECTIVE ORDER