NMC Group Inc v. The Young Engineers Inc

Filing 37

PROTECTIVE ORDER [CHANGES MADE BY THE COURT] by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 34 . See order for details. (hr)

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Michael J. Song, CA Bar No. 243675
[e-mail]
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, CA 90067-1721
Telephone: [phone]
Facsimile: 310.788.3399
Ramsey M. Al-Salam (admitted pro hac vice)
[e-mail]
PERKINS COIE LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206.359.9000
Attorneys for Plaintiff
NMC G ROUP, I NC .

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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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NMC GROUP, INC.,
Plaintiff,

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v.
THE YOUNG ENGINEERS, INC.,

STIPULATED PROTECTIVE ORDER
[COURT MADE CHANGES TO
PARAGRAPHS 2.5 AND 3]

Defendant.

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Case No. 2:11-cv-04280-GHK-JC

AND RELATED COUNTERCLAIMS

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Stipulated Protective Order
Case No. 2:11-cv-04280-GHK-JC

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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

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

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge that Civil Local Rule 79-5 sets forth the procedures that must

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be followed and the standards that will be applied when a party seeks permission

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from the court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

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

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protection under Federal Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
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Designating Party: a Party or Non-Party that designates information or

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’

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EYES ONLY”.

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2.5

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including

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documents, deposition testimony, deposition transcripts, and tangible things, but
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Stipulated Protective Order
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not including other pretrial testimony/transcripts and pretrial hearings), that are

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produced or generated in disclosures or responses to discovery in this matter.

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2.6

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

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pertinent to the litigation who (1) 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, (2) is not a past or

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current employee of a Party or of a Party’s competitor, and (3) at the time of

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

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competitor.

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2.7

“HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’ EYES

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ONLY” Information or Items: extremely sensitive “Confidential Information or

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Items,” disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.

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2.8

House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.9

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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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, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; and (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any conversations or presentations by

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Parties or their Counsel that might reveal Protected Material. However, the

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protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of

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disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; (b) any information known to the Receiving Party prior to the disclosure

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or obtained by the Receiving Party after the disclosure from a source who obtained

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the information lawfully and under no obligation of confidentiality to the

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Designating Party; and (c) pretrial testimony/transcripts, pretrial hearings, trial

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testimony/transcripts and trial. Any use of Protected Material at pretrial hearings

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or trial shall be governed by a separate agreement or order.

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4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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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. Final disposition shall be
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deemed to be the later of (1) dismissal of all claims and defenses in this action,

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

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. To the extent it is practical to do so, the

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify – so that other

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portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this

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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) may

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expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection at all or do not qualify for

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the level of protection initially asserted, that Designating Party must promptly

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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 provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced. Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY” to each

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page that contains protected material.

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A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting

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Party has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ 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.

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

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the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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OUTSIDE COUNSELS’ EYES ONLY”) to each page that contains Protected

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Material.

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(b) for testimony given in deposition, that the Designating Party identify on

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the record, before the close of the deposition, all protected testimony and specify

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the level of protection being asserted. When it is impractical to identify separately

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each portion of deposition testimony that is entitled to protection and it appears

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that substantial portions of the deposition testimony may qualify for protection, the

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Designating Party may invoke on the record (before the deposition is concluded) a

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right to have up to 30 days to identify the specific portions of the deposition

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testimony as to which protection is sought and to specify the level of protection

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being asserted. Only those portions of the deposition testimony that are
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appropriately designated for protection within the 30 days shall be covered by the

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provisions of this Stipulated Protective Order. Alternatively, a Designating Party

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may specify, at the deposition or up to 30 days afterwards if that period is properly

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invoked, that the entire deposition transcript shall be treated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’

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EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a

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deposition to include Protected Material so that the other parties can ensure that

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only authorized individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) are present at the deposition. The use of a

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document as an exhibit at a deposition shall not in any way affect its designation as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’

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EYES ONLY.”

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Deposition transcripts containing Protected Material shall have an obvious

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legend on the title page that the deposition transcript contains Protected Material,

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and the title page shall be followed by a list of all pages (including line numbers as

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appropriate) that have been designated as Protected Material and the level of

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protection being asserted by the Designating Party. The Designating Party shall

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inform the court reporter of these requirements. Any deposition transcript that is

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prepared before the expiration of a 30-day period for designation shall be treated

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during that period as if it had been designated “HIGHLY CONFIDENTIAL –

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OUTSIDE COUNSELS’ EYES ONLY” in its entirety unless otherwise agreed.

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After the expiration of that period, the deposition transcript shall be treated only as

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actually designated.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY.”

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time so long as the timing of any such

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challenge comports with the discovery cut-off deadline. Unless a prompt

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challenge to a Designating Party’s confidentiality designation is necessary to avoid

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foreseeable, substantial unfairness, unnecessary economic burdens, or a 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 and Judicial Intervention. The parties shall comply

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with the procedures set forth in Civil Local Rule 37 to resolve any dispute as to a

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designation of confidentiality and shall comport with the discovery cut-off

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deadline.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

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is disclosed or produced by another Party or by a Non-Party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under

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the conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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

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Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY”. Unless otherwise ordered by the court or permitted

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

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information or item designated “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b) Experts of the Receiving Party (1) to whom disclosure is reasonably

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necessary for this litigation, (2) who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth

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in paragraph 7.4(a), below, have been followed;

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(c) the court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A); and

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(e) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY” Information or Items

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to Experts.

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(a) Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to an Expert (as defined in this

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Order) any information or item that has been designated “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY” pursuant to

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paragraph 7.3(b) first must make a written request to the Designating Party that

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(1) identifies the general categories of “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY” information that the Receiving Party seeks

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permission to disclose to the Expert, (2) sets forth the full name of the Expert and

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the city and state of his or her primary residence, (3) attaches a copy of the

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Expert’s current resume, (4) identifies the Expert’s current employer(s),

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(5) identifies each person or entity from whom the Expert has received

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compensation or funding for work in his or her areas of expertise or to whom the

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expert has provided professional services, including in connection with a litigation,

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at any time during the preceding five years, and (6) identifies (by name and

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number of the case, filing date, and location of court) any litigation in connection

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with which the Expert has offered expert testimony, including through a

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declaration, report, or testimony at a deposition or trial, during the preceding five

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years.

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(b) A Party that makes a request and provides the information specified in

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the preceding respective paragraphs may disclose the subject Protected Material to

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the identified Expert unless, within 14 days of delivering the request, the Party

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receives a written objection from the Designating Party. Any such objection must

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set forth in detail the grounds on which it is based.

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(c) The parties shall comply with the procedures set forth in Civil Local Rule
37 to resolve any dispute as to disclosure of any information or item that has been
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designated “HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’ EYES

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ONLY” to an Expert (as defined in this Order) under paragraph 7.3(b) and shall

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comport with the discovery cut-off deadline.

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8.

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IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSELS’

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EYES ONLY” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena

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or order is subject to this Protective Order. Such notification shall include a copy

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of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.

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The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in

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this action to disobey a lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

(a)

The terms of this Order are applicable to information produced by a

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Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY”. Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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1.

promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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2.

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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3.

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Non-Party.

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10.

make the information requested available for inspection by the

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 unauthorized copies of the Protected Material,

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(c) inform the person or persons to whom unauthorized disclosures were made of

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all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

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PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

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MISCELLANEOUS
12.1 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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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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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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12.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material shall comply with Civil Local Rule 79-5.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a

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

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the Designating Party) by the 60-day deadline that (1) identifies (by category,
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where appropriate) all the Protected Material that was returned or destroyed and

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(2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain

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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

7

reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain

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or constitute Protected Material remain subject to this Protective Order as set forth

10

in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: June 12, 2012

PERKINS COIE LLP

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By: /s/ Michael J. Song
Michael J. Song
[e-mail]

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Attorneys for Plaintiff
NMC GROUP, INC.

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18
19

DATED: June 12, 2012

JOSEPH E. MUETH LAW CORPORATION

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By: /s/ Joseph E. Mueth
Joseph E. Mueth
[e-mail]

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Attorneys for Defendant
THE YOUNG ENGINEERS, INC.

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24
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: June 14, 2012

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27329-7502/LEGAL23861266.2

_______________/s/______________________
Hon. Jacqueline Chooljian
U.S. Magistrate Judge
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Stipulated Protective Order
Case No. 2:11-cv-04280-GHK-JC

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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__________________________________________________________________

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

6

entirety and understand the Stipulated Protective Order that was issued by the

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United States District Court for the Central District of California in the case of

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NMC Group, Inc. v. The Young Engineers, Inc., Case No. 2:11-cv-04280-GHK-JC.

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I agree to comply with and to be bound by all the terms of this Stipulated

10

Protective Order and I understand and acknowledge that failure to so comply could

11

expose me to sanctions and punishment in the nature of contempt. I solemnly

12

promise that I will not disclose in any manner any information or item that is

13

subject to this Stipulated Protective Order to any person or entity except in strict

14

compliance with the provisions of this Order.

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

16

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

17

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

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after termination of this action.

19

I hereby appoint __________________________ [print or type full name] of

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__________________________________________________________________

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[print or type full address and telephone number] as my California agent for

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service of process in connection with this action or any proceedings related to

23

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: ______________________________

27
28

Signature: __________________________________
27329-7502/LEGAL23861266.2

-15-

Stipulated Protective Order
Case No. 2:11-cv-04280-GHK-JC