Atari Interactive Inc v. Jonathan Wan et al

Filing 19

ORDER by Magistrate Judge Paul L. Abrams ON THE PARTIES' STIPULATED PROTECTIVE ORDER 18 **See Order for details.** (ch)

1 Angela C. Agrusa, Esq. (SBN: 131337)
[e-mail]
2 Kathryn L. McCann, Esq. (SBN: 245198)
[e-mail]
3 LINER GRODE STEIN YANKELEVITZ
SUNSHINE REGENSTREIF & TAYLOR LLP
4 1100 Glendon Avenue, 14th Floor
Los Angeles, California 90024-3503
5 Telephone: [phone]
Facsimile: [phone]
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Attorneys for Plaintiff
7 ATARI INTERACTIVE, INC.
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 ATARI INTERACTIVE, INC.,

Case No. CV11 05224 SVW (PLAx)

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ORDER ON THE PARTIES'
STIPULATED PROTECTIVE
ORDER

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)
)
)
Plaintiff,
)
)
vs.
)
)
JONATHAN WAN a/k/a JONATHAN
KWOK WAN a/k/a KWOK HUNG WAN )
a/k/a KWOK WING WAN a/k/a HUNG )
)
WAN KWOK; TOMMO INC. d/b/a
)
TOMMO VIDEO GAME
DISTRIBUTION and TOMO INC.; and )
)
DOES 1 - 10, inclusive,
)
)
Defendants.
)

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ORDER

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There being good cause, as set forth in the Stipulation and [Proposed]

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Protective Order (“Stipulation of the Parties”) filed concurrently herewith and entered
into by Plaintiff Atari Interactive, Inc. (“Plaintiff”) and Defendants Jonathan Wan and
Tommo Inc. (“Defendants”) (collectively “the Parties”) on October 18, 2011, it is
hereby ordered that:
1.

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In connection with discovery furnished by the Parties (or any of their

present and former directors, officers, employees and agents) in the Action, counsel
for the Parties may designate any nonpublic document, material, or information as
“Confidential” under the terms of this Stipulated Protective Order if counsel in good
faith believes that it contains the following proprietary or financial information:
(a)

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Financial details regarding the parties’ internal business

operations, including but not limited to revenue and expense reports, market

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projections, and other financial analysis;

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(b)

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Financial terms of contracts and/or agreements with

manufacturers, distributors and retailers of video game products;

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(c)

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Information regarding current or former personnel, personal

financial information, or other personally identifiable information; and

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(d)

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Trade secrets, defined pursuant to Section 3426.1 of the

California Civil Code as “information, including a formula, pattern,

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compilation, program, device, method, technique, or process, that:

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(1) Derives independent economic value, actual or potential, from

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not being generally known to the public or to other persons who

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can obtain economic value from its disclosure or use; and

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(2) Is the subject of efforts that are reasonable under the

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circumstances to maintain its secrecy.”

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2.

In connection with discovery furnished by any of the Parties (or any of

their present and former directors, officers, employees and agents) in the Action,
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counsel for the Parties may designate any nonpublic document, material, or
information as “Highly Confidential” under the terms of this Stipulated Protective
Order if:
(a)

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Protective Order as “Confidential” as described above at Paragraph No. 1; and

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(b)

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financial information to which no personnel of the receiving party previously

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have had unrestricted access, that, if disclosed to persons other than those

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permitted under Paragraph 7, could cause irreparable competitive or other

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injury; and

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(c)

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or information.

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3.

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counsel in good faith believes that there is good cause to restrict

the personnel of the receiving party from access to such documents, material

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it contains or reflects trade secrets, proprietary, confidential or

competitively sensitive business, commercial, research, development or

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it is properly designable under the terms of this Stipulated

Any documents, material, or information to be designated as

“Confidential” or “Highly Confidential” shall be so designated by affixing the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to each page containing any
“Confidential” or “Highly Confidential” documents, material, or information.
(a)

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Affixing the legend “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL” on the cover of any multipage document which is bound,

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stapled, or otherwise securely attached shall designate all pages of the

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document as “Confidential” or “Highly Confidential,” unless otherwise

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indicated by the producing party.

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(b)

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Transcripts of depositions of the parties (or any of their present

and former directors, officers, employees and agents) shall be provisionally

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designated “Highly Confidential” in their entirety until counsel for that party

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serves a separate written notice setting forth the designations for such
transcript on a more specific basis, provided that the designating counsel shall
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make the designations within twenty-one (21) days of counsel’s receipt of the

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original deposition transcript.

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(c)

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information designated as “Confidential” or “Highly Confidential” is marked

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as an exhibit, inquired about or otherwise used, the portion of the deposition

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transcript that relates to such documents, material or information shall be

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automatically treated as if it had been so designated under the terms of this

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Stipulated Protective Order.

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If at any deposition in the Action any document, material or

The inadvertent production by any of the undersigned parties of any

“Confidential” or “Highly Confidential” document, material or information during
discovery in this Action without a “Confidential” or “Highly Confidential”
designation, or any other inadvertent production by such party of any document,
material or information in discovery in this Action, shall be without prejudice to any
claim that such material is “Confidential” or “Highly Confidential” or is privileged in
any respect or protected from discovery as work product or as trial preparation
material, and such party shall not be held to have waived any rights by such
inadvertent production. In the event that such production occurs, counsel for the
producing party shall redesignate the appropriate level of confidentiality, which shall
thereafter apply to such document, material or information subject to the terms of
this Stipulated Protective Order. Counsel for the producing party will also reproduce the documents with the appropriate confidentiality designation. In the event
that any document that is subject to a claim of privilege or that is protected from
discovery as work product or as trial preparation material is inadvertently produced,
the party that inadvertently received the document shall return the document together
with all copies of the document to counsel for the producing party promptly after it
receives a written notice from counsel for the producing party that the document was
produced inadvertently.

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5.

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“Confidential” or “Highly Confidential” requires additional procedures (as specified
in this Stipulated Protective Order) and litigation therefore can be more burdensome
to the extent that such designations are used. Each party therefore expressly agrees
that these designations will be used only when there is a good faith belief that they
are warranted. A party receiving documents, material, or information designated as
“Confidential” or “Highly Confidential” may object to and request the removal of
such designation, initially by making a good faith effort to resolve any such objection
by contacting the producing party, and thereafter by court intervention, using the
procedure set forth in Local Rule 37. Each party agrees that it will promptly meet
and confer in good faith about the removal of a confidentiality designation from a
particular document or documents when another party gives notice of its belief that
the designation was not appropriate with respect to the document(s) specified. While
any application, motion, or other such filing pertaining to the appropriateness of a
confidentiality designation is pending before the Court, the documents, material,
information or testimony in question shall be treated as “Confidential” or “Highly
Confidential” pursuant to this Stipulated Protective Order. In addition, to the extent
the parties desire to file the Joint Stipulation required by Local Rule 37 under seal,
the parties may file a stipulation to that effect or the moving party may file an ex
parte application making the appropriate request. The parties must set forth good
cause in the stipulation or ex parte application as to why the Joint Stipulation or
portions thereof should be filed under seal.
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Each party understands that treatment of documents and information as

Documents, material or information designated as “Confidential” (and

any information derived therefrom) may be disclosed or made available by the
receiving party only to the following:
(a)

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The Court (including the Court’s administrative and clerical staff)

in written submissions or at any oral hearing in the Action (in the manner
provided by paragraph 10 of this Stipulated Protective Order);
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(b)

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(1) Attorneys of record in the Action and their affiliated

attorneys, paralegals, clerical and secretarial staff employed by such attorneys

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who are actively involved in the Action and are not employees of any party.

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(2) In-house counsel to the undersigned parties and the paralegal, clerical and

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secretarial staff employed by such counsel. Provided, however, that each non-

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lawyer given access to documents, material or information designated as

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“Confidential” shall be advised that such documents, material or information

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are being disclosed pursuant to, and are subject to, the terms of this Stipulated

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Protective Order and that they may not be disclosed other than pursuant to its

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terms;

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(c)

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Those officers, directors, partners, members, employees and

agents of the undersigned parties that counsel for such parties deems necessary

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to aid counsel in the prosecution and defense of this Action; provided,

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however, that prior to the disclosure of documents, material or information

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designated as “Confidential” to any such officer, director, partner, member,

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employee or agent, counsel for the party making the disclosure shall deliver a

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copy of this Stipulated Protective Order to such person, shall explain its terms

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to such person, and shall secure the signature of such person on a statement in

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the form attached to the Stipulation of the Parties as Exhibit A;

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(d)

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Court reporters transcribing depositions in the Action;

(e)

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Any deposition, trial or hearing witness in the Action who

previously has had access to the documents, material or information, or who is

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currently an officer, director, partner, member, employee or agent of an entity

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that has had access to the documents, materials or information;

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(f)

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Outside experts, advisors and/or translators consulted by the

undersigned parties or their counsel in connection with the Action, whether or

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not retained to testify at any oral hearing; provided, however, that prior to the
disclosure of documents, material or information designated as “Confidential”
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to any such expert, advisor, and/or translator, counsel for the party making the

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disclosure shall deliver a copy of this Stipulated Protective Order to such

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person, shall explain its terms to such person, and shall secure the signature of

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such person on a statement in the form attached to the Stipulation of the

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Parties as Exhibit A. It shall be the obligation of counsel, upon learning of any

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breach or threatened breach of this Stipulated Protective Order by any such

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expert, advisor, and/or translator, promptly to notify counsel for the

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designating party of such breach or threatened breach;

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(g)

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Vendors retained by or for the Parties or their counsel to assist in

preparing for pretrial discovery, trial, and/or hearings including, but not

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limited to, litigation support personnel, jury consultants, individuals to prepare

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demonstrative and audiovisual aids for use in the courtroom or in depositions

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or mock jury sessions, as well as their staff, stenographic, and clerical

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employees whose duties and responsibilities require access to such materials;

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provided, however, that prior to the disclosure of documents, material or

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information designated as “Confidential” to any such person, counsel for the

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party making the disclosure shall deliver a copy of this Stipulated Protective

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Order to such person, shall explain its terms to such person, and shall secure

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the signature of such person on a statement in the form attached to the

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Stipulation of the Parties Exhibit A;

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(h)

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Any mediator or arbitrator that the Parties engage in this matter or

the Court appoints; provided, however, that prior to the disclosure of

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documents, material or information designated as “Confidential” to any such

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mediator or arbitrator, counsel for the party making the disclosure shall deliver

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a copy of this Stipulated Protective Order to such person, shall explain its

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terms to such person, and shall secure the signature of such person on a

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statement in the form attached to the Stipulation of the Parties as Exhibit A;

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(i)

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bodies pursuant to a valid subpoena, provided that:

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(i)

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business days after service of the subpoena, and (b) five (5) business

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days prior to any production of documents, material or information in

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response thereto; and

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(ii)

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at or before the time of production the subpoenaed party

proceed in good faith to seek to obtain confidential treatment of such

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“Confidential” subpoenaed documents, material or information from the

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relevant governmental law enforcement agency or body to the fullest

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extent available under law; and

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(j)

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Any other person that the Parties agree to in writing; provided,

however, that prior to the disclosure of documents, material or information

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designated as “Confidential” to any such person, counsel for the party making

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the disclosure shall deliver a copy of this Stipulated Protective Order to such

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person, shall explain its terms to such person, and shall secure the signature of

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such person on a statement in the form attached to the Stipulation of the

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Parties as Exhibit A.

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the subpoenaed party give counsel for the designating party

written notice of such subpoena within the shorter of (a) five (5)

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Governmental law enforcement agencies and other governmental

For documents, material, or information designated as “Highly

Confidential” (and any information derived therefrom), the following procedures
shall apply:
(a)

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The designation “Highly Confidential” shall be used with respect

to such documents, material or information in lieu of “Confidential.”

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(b)

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Documents, material or information designated “Highly

Confidential” shall receive all the same protections and treatment provided

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under this Stipulated Protective Order as if they had been designated
“Confidential,” except that disclosure thereof under paragraph 6(b) of this
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Stipulated Protective Order shall not extend to in-house counsel of the

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receiving party and there shall be no disclosure thereof under paragraph 6(c) of

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this Stipulated Protective Order.

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(c)

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Protective Order as to the handling of disputes concerning the propriety of any

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designation of documents, material or information as “Confidential,” and as to

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the availability of applications to the Court in relation thereto, shall apply

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equally to any disputes concerning the propriety of any designation of

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documents, material or information as “Highly Confidential.”

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purposes of preparing for, conducting, participating in the conduct of, and/or
prosecuting and/or defending the Action, and not for any business or other purpose
whatsoever.
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Nothing herein shall impose any restrictions on the use or disclosure by

any party or witness of documents, material or information known or obtained by
such party or witness, by legitimate means, independently of the discovery obtained
in the Action, whether or not such documents, material or information may
additionally have been obtained through discovery in the Action.
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Documents, material or information designated as “Confidential” or

“Highly Confidential” shall be used by the persons receiving them only for the

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The provisions of paragraphs 5, 11 and 12 of this Stipulated

If documents, material or information designated as “Confidential” or

“Highly Confidential” are to be included in any papers to be filed with any court or
are to be otherwise used before any court, such papers shall be accompanied by an
application to file the papers, or the confidential portion thereof, under seal. The
application shall be directed to the judge to whom the papers are directed. Pending
the ruling on the application, the papers or portions thereof subject to the sealing
application shall be lodged under seal.
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Any party to the Action (or other person subject to the terms of this

Stipulated Protective Order) may ask the Court, after appropriate notice to the other
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parties to the Action, to modify or grant relief from any provision of this Stipulated
Protective Order, using the procedure set forth in Local Rule 37.
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Stipulated Protective Order shall not:
(a)

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confidential or competitively sensitive business, commercial, financial or

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personal information; or

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(b)

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(i)

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protection as “Confidential” or “Highly Confidential” under the terms of

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this Stipulated Protective Order; or

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(ii)

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Protective Order, either generally or as to any particular document,

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material or information, using the procedure set forth in Local Rule 37.

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13.

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to seek relief from the Court on appropriate notice to all

other parties to the Action from any provision(s) of this Stipulated

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to seek a determination by the Court of whether any

particular document, material or information should be subject to

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prejudice in any way the right of any party (or any other person

subject to the terms of this Stipulated Protective Order) at any time:

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operate as an admission by any person that any particular

documents, material or information contain or reflect trade secrets, proprietary,

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Entering into, agreeing to, and/or complying with the terms of this

Upon the termination of the Action (including all appeals), the Parties

either (a) shall promptly return to counsel for each designating party all documents,
material or information designated by that party as “Confidential” or “Highly
Confidential” and all copies thereof (except that counsel for each party may maintain
in its files one copy of each pleading filed with any court and one copy of each
deposition together with the exhibits marked at the deposition), or (b) may agree with
counsel for the designating party upon appropriate methods and certification of
destruction of such documents, material or information. Also at such time, counsel
for the designating party shall be given copies of each statement in the form attached

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to the Stipulation of the Parties as Exhibit A that was signed pursuant to ¶ 6 of this
Stipulated Protective Order.
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action, to the extent that the information contained in “Confidential” or “Highly
Confidential” documents, material or information is not or does not become known
to the public, and the Court shall retain jurisdiction over this Stipulated Protective
Order for the purpose of enforcing it.
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thereafter become a party to this Stipulated Protective Order by its counsel’s signing
and dating a copy thereof and filing the same with the Court, and serving copies of
such signed and dated copy upon the other parties to this Stipulated Protective Order.
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Any documents, material or information that may be produced by a non-

party witness in discovery in the Action pursuant to subpoena or otherwise may be
designated by such non-party as “Confidential” or “Highly Confidential” under the
terms of this Stipulated Protective Order, and any such designation by a non-party
shall have the same force and effect, and create the same duties and obligations, as if
made by one of the undersigned parties hereto. Any such designation shall also
function as a consent by such producing party to the authority of the Court in the
Action to resolve and conclusively determine any motion or other application made
by any person or party with respect to such designation, or any other matter
otherwise arising under this Stipulated Protective Order.
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Any party to the Action who has not subscribed to this Stipulated

Protective Order as of the time it is presented to the Court for signature may

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This Stipulated Protective Order shall survive the termination of this

The parties and all signatories to the Certification attached to the

Stipulation of the Parties as Exhibit A agree to be bound by this Protective Order
pending its approval and entry by the Court. In the event that the Court modifies this
Stipulation and Protective Order, or in the event that the Court enters a different
Protective Order, the parties agree to be bound by this Stipulation and Protective
Order until such time as the Court may enter such a different Order. It is the parties’
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intent to be bound by the terms of this Protective Order pending its entry so as to
allow for immediate production of Confidential Information under the terms herein.

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IT IS SO ORDERED.
Dated: October 28, 2011

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__________________________________
The Honorable Paul L. Abrams
United States Magistrate Judge

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