Cavs USA Inc v. Slep-Tone Entertainment Corporation

Filing 18

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 17 . (san)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CAVS USA, INC., a California
corporation,

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Plaintiff,

Case No. 2:11cv05574-DDP-JEM
[PROPOSED] ORDER

vs.

Complaint Filed: July 6, 2011
SLEP-TONE ENTERTAINMENT
Trial Date:
N/A
CORPORATION, d.b.a. SOUND
CHOICE, a North Carolina corporation,

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Defendant.

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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Having considered the parties’ [Proposed] Stipulated Protective Order set

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forth below and finding good cause therefore, it is hereby ORDERED that the

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following Stipulation between the parties shall be the Order of the Court:

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PURPOSE AND LIMITATIONS. The parties acknowledge that each

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possesses, controls, or has in its custody certain non-public information that

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constitutes confidential, proprietary, or private information for which special

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

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litigation is warranted. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the

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protection this Order affords extends only to the limited information or items that

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are entitled under the applicable legal principles to treatment as confidential. The

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parties further acknowledge that this Order creates no entitlement to file

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confidential information under seal and that Local Civil Rule 79-5 sets forth the

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procedures that must be followed and reflects the standards that will be applied

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when a party seeks permission from the court to file material under seal. The

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parties agree to cooperate for the purpose of limiting – to the extent possible – the

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need to file materials under seal.

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1.

DEFINITIONS.
1.1.

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The term “Action” means this case no. 2:11cv05574-DDP-JEM

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and any subsequent adjudication of the claims asserted herein by and among any of

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the parties to this case, including but not limited to requests to enforce or challenge

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any award entered or any appeals or retrials.
1.2.

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The term “Designating Party” means a party or non-party that

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designates any Disclosure in this Action as “Confidential” or “Attorneys’ Eyes

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Only.”

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1.3.

The term “Disclosure” means any item, document, or

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information, regardless of the medium or manner generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things) that is
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produced, made available for inspection, or generated in response to discovery or

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through any other means of disclosure in this Action other than at court

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proceedings.
1.4.

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The term “In-House Counsel” means any attorney who is an

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employee of a party, or of an entity under common control of a party, who is

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responsible for managing litigation for that party.
1.5.

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The term “Outside Counsel” means any attorney who is not an

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employee of a party, or of an entity under common control of a party, but who is

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retained to represent or advise a party in this Action.
1.6.

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The term “Producing Party” means a party or non-party that

provides a Disclosure in this Action.
1.7.

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The term “Professional Vendor” means a person or entity that

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provides litigation support services (e.g., photocopying; videotaping; translating;

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preparing exhibits or demonstrations; organizing, storing, or retrieving data in any

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form; trial or jury consulting; etc.) and employees and subcontractors thereof.
1.8.

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designated as “Confidential” or “Attorneys’ Eyes Only.”
1.9.

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The term “Protected Information” means any Disclosure that is

The term “Receiving Party” means a party that receives a

Disclosure from a Producing Party.
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SCOPE. The protections conferred by this Order cover all Protected

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Information; any information copied or extracted therefrom; all copies, excerpts,

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summaries, and compilations thereof; and all testimony, conversations, and

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presentations by the parties or their counsel that might reveal Protected Information

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other than in proceedings before the Court.

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3.

DURATION. This Order shall survive the termination of this Action

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and shall remain in full force and effect unless modified by an Order of this Court

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or other court of competent jurisdiction or by the written stipulation of the parties

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filed with this Court.
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4.

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DESIGNATING PROTECTED INFORMATION.
4.1.

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“Confidential” Designation. Any party (including any third

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party who is producing documents or information in the Action) may designate as

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“Confidential” and subject to this Protective Order any Disclosure or portion

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thereof that the party believes in good faith to contain trade secrets; competitively

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sensitive technical, marketing, financial, or sales information or other proprietary or

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confidential business information; private or confidential personal information; or

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information received in confidence from a third party.
4.2.

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“Attorneys’ Eyes Only” Designation. A party (including any

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third party who is producing documents or information in the Action) may

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designate as “Attorneys’ Eyes Only” and subject to this Protective Order any

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Disclosure or portion thereof that the party believes in good faith to contain highly

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sensitive business or personal information, the disclosure of which is likely to cause

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significant harm to an individual or to the business or competitive position of the

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party.

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4.3.

Exercise of Restraint and Care in Designating Protected

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Information. A Designating Party must take care to designate as Protected

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Information only those parts of Disclosures that qualify so that other portions of the

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Disclosures for which protection is not warranted are not swept unjustifiably within

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the ambit of this Order. Mass, indiscriminate, or routinized designations are

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prohibited. Designations that are shown to be clearly unjustified or that have been

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made for an improper purpose (e.g., to unnecessarily encumber or retard the case

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development process, or to impose unnecessary expenses and burdens on other

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parties) may expose the Designating Party to sanctions if such improper

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designations are not reasonably withdrawn or corrected upon request by the

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Receiving Party. If after designating a Disclosure as Protected Information the

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Designating Party believes that such Disclosure does not qualify for the level of

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protection asserted, the Designating Party shall promptly notify all other parties in
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writing and, if the Designating Party was the Producing Party, shall promptly

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correct the mistaken designation by providing a replacement production marked in

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accordance with Section 5.5 below.

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4.4.

Timing of Designations. Except as otherwise provided in this

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Section 5.4, a Producing Party shall designate any Disclosure that qualifies for

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protection under this Order at or before such time that the Disclosure is produced or

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disclosed to a Receiving Party. A Producing Party that makes original documents

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

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after the Receiving Party has indicated which material it would like copied and

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

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made available for inspection shall be treated as having “Attorneys’ Eyes Only”

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designation. After the Receiving Party has identified which portions of the

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Disclosure it wants copied and produced, the Producing Party must determine to

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what extent those portions of the Disclosure qualify for protection under this Order,

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and, before producing the specified portions of the Disclosure, the Producing Party

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shall affix where applicable the appropriate legend of “Confidential” or “Attorneys’

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Eyes Only” in the manner provided in Section 5.5.

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4.5.

Manner of Designations. Disclosing Parties shall designate

Protected Information as “Confidential” or “Attorneys’ Eyes Only” as follows:
4.5.1. Documents. In the case of documents produced in

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response to requests for production, interrogatories, requests for admission, or

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otherwise disclosed during discovery or the course of this Action, designation shall

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be made by placing on every page containing Protected Information the legend

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“Confidential” or “Attorneys’ Eyes Only” as applicable. The foregoing shall not

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preclude the inclusion of additional text in the legend, such as “Subject to

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Protective Order” or other similar designation. The “Confidential” and “Attorneys’

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Eyes Only” designations shall be deemed to apply to the pages so marked and to

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the information contained therein. If only a portion of the material on a page
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qualifies for protection, the Designating Party shall clearly identify the protected

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

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each such portion, the level of protection being asserted (i.e., “Confidential” or

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“Attorneys’ Eyes Only”).
4.5.2. Depositions. Proceedings at a deposition may be

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designated as “Confidential” or “Attorneys’ Eyes Only” by the Designating Party

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identifying on the record, before the close of the deposition, the portions of the

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proceedings that qualify as “Confidential” or “Attorneys’ Eyes Only.” When it is

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impractical to identify separately each portion of testimony that is entitled to

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protection, and when it appears that substantial portions of the testimony may

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qualify for protection, the Designating Party may invoke on the record, before the

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conclusion of the deposition, a right to have up to fourteen days to review the

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transcript and identify the specific portions of the testimony as to which protection

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is sought and to specify the level of protection being asserted (i.e., “Confidential”

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or “Attorneys’ Eyes Only”). During that fourteen-day period, the transcript and

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testimony will be treated as “Attorneys’ Eyes Only.” Arrangements shall be made

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with the court reporter taking and transcribing such deposition, to separately bind

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such portions of the transcript containing Protected Information and to label such

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portions with the appropriate legend of “Confidential” or “Attorneys’ Eyes Only”

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as instructed by the Designating Party.
4.5.3. Non-Paper Media. For Disclosures produced in some

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form other than on paper, and for any tangible items other than papers, the

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Designating Party shall affix in a prominent place on the exterior of such non-paper

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media the legend “Confidential” or “Attorneys’ Eyes Only” as applicable. If only

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portions of such non-paper Disclosures warrant protection, the Designating Party

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shall, to the extent practicable, identify the protected portions, specifying whether

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they qualify as “Confidential” or “Attorneys’ Eyes Only.” In the event a Receiving

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Party generates any hard copy reproduction of such non-paper media Disclosures,
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such Receiving Party shall mark and treat such hard copy with the appropriate

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legend(s) as set forth for documents in Paragraph 4.5.1 above.
4.6.

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Failures to Designate; No Waiver. The parties shall take

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reasonable precautions and use best efforts to protect against the improper or

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unauthorized disclosure of Protected Information. Disclosures of Protected

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Information that should have been designated as such (or designated at a higher

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level of protection) shall not be deemed a waiver of a party’s claim of

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confidentiality, either as to the specific Disclosures or as to any other information

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concerning the same or related subject matter. Such a Disclosure of Protected

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Information may be rectified by written notice to all Receiving Parties promptly

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after the Producing Party learns of the Disclosure that should have been designated

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as Protected Information (or designated at a higher level of protection). Such

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written notice shall constitute a designation of the Disclosure as “Confidential” or

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“Attorneys’ Eyes Only” Protected Information as the case may be, and the

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Producing Party shall promptly provide a replacement production marked in

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accordance with Section 5.5 above. The Receiving Party shall make reasonable

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efforts to ensure that the material so designated is treated in accordance with the

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provisions of this Order.

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ACCESS TO PROTECTED INFORMATION.
5.1.

Access to “Attorneys’ Eyes Only” Information. Absent

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written permission from the Designating Party or an Order from this Court and

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unless otherwise provided in this Order, Disclosures designated “Attorneys’ Eyes

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Only” shall be used solely for the purpose of this Action and may be disclosed only

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to the following persons:
5.1.1. Outside Counsel in this Action and all attorneys,

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paralegals, and administrative and clerical employees of the law firm of such

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Outside Counsel;

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5.1.2. experts and consultants who are assisting Outside Counsel

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in the preparation for any deposition, hearing, trial, or other proceeding in this

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Action and who agree to be bound by the terms of this Order by executing the

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

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5.1.3. the Court and its personnel;

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5.1.4. any court reporter, videographer, or interpreter

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transcribing, recording, or interpreting testimony that includes Protected

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Information;
5.1.5. any person identified by the Designating Party or on the

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face of a protected Disclosure as an author, recipient, or authorized custodian of the

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Disclosure or the Protected Information contained therein;
5.1.6. Professional Vendors hired by and under the control and

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supervision of Outside Counsel and necessary to assist Outside Counsel in

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preparation for trial or in fulfilling a party’s discovery obligations; and
5.1.7. any other person agreed upon by the parties in writing or

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as Ordered by the Court.
5.2.

Access to “Confidential” Information. Absent written

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permission from the Designating Party or an Order from this Court and unless

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otherwise provided in this Order, Disclosures designated “Confidential” shall be

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used solely for the purpose of this Action and may be disclosed only to the

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following persons:
5.2.1. any person having access to “Attorneys’ Eyes Only”

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information as provided in Section 5.1 above;
5.2.2. current employees (including independent contractors

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whose primary job is to work at the Receiving Party’s office or facility), In-House

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Counsel, officers, and directors of a party to this Action to whom Outside Counsel

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believes disclosure to be reasonably necessary for this Action;

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5.2.3. former employees (including independent contractors

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whose primary job is to work at the Receiving Party’s office or facility), In-House

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Counsel, officers, and directors of a party to this Action to whom Outside Counsel

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believes disclosure to be reasonably necessary for this Action;
5.2.4. during their depositions, witnesses in the Action to whom

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Outside Counsel believes disclosure to be reasonably necessary;
5.2.5. any person who is a superior to any person identified by

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the Designating Party or on the face of a protected Disclosure as an author,

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recipient, or authorized custodian of the Disclosure or the Protected Information

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contained therein;
5.2.6. representatives of any insurer that may provide coverage

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to any party for any of the claims asserted in this Action; and
5.2.7. any other person agreed upon by the parties in writing or

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as Ordered by the Court.
5.3.

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Storage and Copies of Protected Information. The recipient

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of any Protected Information shall maintain such Protected Information in a secure

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and safe area and shall exercise the same standard of due care with respect to the

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storage, custody, use, or dissemination of such Protected Information as is

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exercised by the recipient with respect to its own proprietary information.

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Protected Information shall not be copied, reproduced, summarized, or abstracted

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except to the extent that such copying, reproduction, summarization, or abstraction

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is intended for the conduct of this Action and believed in good faith to be

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appropriate for that purpose. Any such copies, reproductions, summaries, and

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abstracts shall be subject to the terms of this Order and labeled in the same manner

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as the Protected Information upon which they are based. This provision shall not

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apply to the Court or court personnel.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS. A

party shall not be obligated to challenge the propriety of a “Confidential” or
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“Attorneys’ Eyes Only” designation at the time made, and failure to do so shall not

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preclude a subsequent challenge thereto during the pendency of this Action. In the

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event that any party to this Action disagrees with such a designation, such party

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may provide to the Designating Party written notice of its disagreement with the

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designation. The parties shall first try to resolve such dispute in good faith on an

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informal basis. If the dispute cannot be resolved, the party challenging the

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designation may request appropriate relief from the Court in accordance with Local

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Rules 37-1 and 37-2 (including the Joint Stipulation requirement). The Designating

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Party will carry the burden of proving that it properly designated the subject

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Disclosure as “Confidential” or “Attorneys’ Eyes Only.” Any challenged

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designation will remain in force until otherwise determined, either by agreement of

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the parties or by Order of the Court, as provided herein.

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7.

FILING UNDER SEAL. In accordance with Local Rule 79-5.1, if

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any papers to be filed with the Court contain information and/or documents that

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have been designated as “Confidential” or “Attorneys’ Eyes Only,” the proposed

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filing shall be accompanied by an application to file the papers or the portion

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thereof containing the designated information or documents (if such portion is

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segregable) and if appropriate, the application itself under seal’ and the application

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

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8.

NO APPLICATION TO PUBLIC OR OTHERWISE

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AVAILABLE INFORMATION. Notwithstanding the designation of any

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Disclosure as “Confidential” or “Attorneys’ Eyes Only,” the same shall not be

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deemed Protected Information shall not be subject to this Order if the substance

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thereof:

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8.1.

is, at the time of disclosure by the Disclosing Party, public

knowledge by publication or otherwise;

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8.2.

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becomes, at any time and through no act or failure to act on the

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part of the Receiving Party and without breach of any obligation of confidence,

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public knowledge;
8.3.

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has previously been disclosed in public by the Disclosing Party

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to the Receiving Party or any third party without any obligation of confidence to the

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Disclosing Party;

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8.4.

has been made available to the Receiving Party by a third person

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who obtained it by legal means and without any obligation of confidence to the

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Disclosing Party;

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8.5.

was previously known to the Receiving Party and can be

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demonstrated by written documents to have been in the Receiving Party’s

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possession prior to the disclosure by the Producing Party; or
8.6.

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is independently developed or discoverable by employees or

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consultants of the Receiving Party who did not have access to such Protected

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Information.

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9.

USE OF PROTECTED INFORMATION LIMITED TO THIS

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ACTION. The Receiving Party may use Protected Information only for the

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purpose of conducting this Action and not for any business or other purpose

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whatsoever, unless agreed to in writing by the Producing Party. No Protected

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Information or the contents thereof may be disclosed to or used with any

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representatives, agent, attorney, or employee of the Receiving Party, except as

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provided herein. Nothing contained in this Order shall preclude a Disclosing Party

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from using or disseminating its own Protected Information.

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THIRD PARTY PROTECTED INFORMATION. In the case of a

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third party disclosing documents or information in this litigation, within thirty (30)

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days after receipt of a Disclosure from any such third party in this Action, any party

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to this Action may designate any portion of such Disclosure as “Confidential” or

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“Attorneys’ Eyes Only” under this Order if such Disclosure has not otherwise been

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so designated by the third party.

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12.

INADVERTENT DISCLOSURE. If a Receiving Party discloses

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Protected Information through inadvertence or otherwise to any person or party not

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authorized under this Protective Order, the Receiving Party shall immediately

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notify the Disclosing Party of the disclosure, and the Receiving Party shall use its

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best efforts to promptly retrieve all copies of any Disclosure containing such

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Protected Information and to bind such person to the terms of this Protective Order,

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including cooperating in obtaining an order of the Court to remedy the inadvertent

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disclosure, if necessary. The Receiving Party also shall: (a) promptly inform such

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unauthorized person of all the provisions of this Protective Order, including

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providing such person with a copy of this Order; (b) identify such person

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immediately to the Disclosing Party and inform the Disclosing Party of all pertinent

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facts relating to the inadvertent disclosure; and (c) request that such unauthorized

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person sign the “Agreement to Be Bound by Protective Order” (Exhibit A).

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13.

USE OF OWN INFORMATION ALLOWED. Nothing in this

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Order shall prevent any Designating Party to the Action from disclosing or using, in

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any manner or for any purpose, information or documents from that Designating

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Party’s own files merely because the party itself has designated such information or

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documents as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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14.

EXCLUSION OF INDIVIDUALS FROM DEPOSITIONS.

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Counsel for a Designating Party shall have the right to exclude from oral

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depositions any person not authorized to access Protected Information as set forth

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in Section 5 above. Such right of exclusion shall be applicable only during periods

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of examination or testimony directed to or comprising Protected Information of the

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Designating Party.

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15.

CONCLUSION OF LITIGATION. Within sixty (60) days of the

termination of all of this Action, whether through settlement or final judgment
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(including any and all appeals therefrom), each Receiving Party shall, at the option

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of the Receiving Party, either return to the Designating Party or destroy all

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Protected Information produced by the Designating Party, except where the

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Designating Party has previously requested that certain Protected Information be

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returned. However, the parties shall be permitted to retain copies of work product

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that incorporates, describes, or refers to Protected Information subject to the other

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terms and conditions of this Order. Outside Counsel for each party shall be entitled

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to retain all pleadings, motion papers, legal memoranda, correspondence, work

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product, trial transcripts, and trial exhibits. This provision shall not apply to the

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Court or court personnel.
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VIOLATIONS OF PROTECTIVE ORDER. In the event that any

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person or party violates or threatens to violate the terms of this Order, the aggrieved

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Disclosing Party may immediately apply to obtain injunctive relief against such

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person or party violating or threatening to violate this Order. The parties and any

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other person subject to the terms of this Order agree that this Court shall retain

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jurisdiction over it and them for the purpose of enforcing this Order.

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17.

REQUIRED DISCLOSURES. If Protected Information is requested

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from any Receiving Party by a court, government entity, or third party pursuant to a

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valid subpoena or other court order, the party receiving such request shall

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immediately notify the other parties to this Action in writing and provide them a

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reasonable time in which to object or take steps to protect their interests before any

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Protected Information is produced. Nothing contained in this Protective Order is

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intended to be construed as authorizing a party to disobey a lawful subpoena issued

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in another action.

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18.

ALL RIGHTS RESERVED. Any party to this Action may apply to

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the Court at any time for a modification of or an exception to this Order. Such

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application may be made only after reasonable attempts have been made to meet

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and confer with counsel for all other parties to this Action, and all parties shall have
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a full and fair opportunity to be heard by the Court before modification of or

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exception to this Order.

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NO WAIVER OF ATTORNEY-CLIENT PRIVILEGE OR

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WORK-PRODUCT PROTECTION. If information is produced in discovery

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that is subject to a claim of privilege or protection as trial preparation material, the

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party making the claim may notify any party that received the information of the

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claim and the basis for it. After being notified, a party must promptly return,

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sequester, or destroy the specified information and any copies it has; must not use

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or disclose the information until the claim is resolved; must take reasonable steps to

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retrieve the information if the party disclosed it before being notified; and may

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promptly present the information to the court under seal for a determination of the

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claim. The Producing Party must preserve the information until the claim is

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resolved. Any disclosure or production in discovery in this Action of documents

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that are protected by the attorney-client privilege or subject to work-product

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protection will not constitute a waiver of either any available privilege or protection

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by the disclosing party as a consequence of such disclosure or production. This

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provision does not, however, prevent a party from raising some other basis as

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establishing that the Producing Party has otherwise waived the attorney-client

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privilege or work product protection as to the materials produced, or that such

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privilege or protection does not apply to the materials produced.

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20.

NO WAIVER OF OBJECTIONS, PRIVILEGES. Nothing

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contained in this Order shall affect or waive any party’s right to object to the

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admissibility, discoverability, or privileged or exempted nature of any Disclosure,

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all such objections and exemptions being specifically preserved.

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21.

MODIFICATION OR EXCEPTION UPON WRITTEN

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AGREEMENT. The parties may agree in writing to reasonable modifications of

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or exceptions to this Order; however, no modification or exception by the parties

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shall have the force or effect of a Court Order unless the Court endorses such

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modification or exception.

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HEADINGS. The headings herein are provided only for the

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convenience of the parties and are not intended to define or limit the scope of the

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express terms of this Order.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: October 25, 2011
HON. JOHN E. MC.DERMOTT
UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I, ________________________, hereby acknowledge that I have received a

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copy of the Protective Order entered in this action (Case No. 2:11cv05574-DDP-

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JEM) by the United States District Court for the Central District of California

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(hereinafter the “Protective Order”) and further state and agree to the following:
1.

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terms of the Protective Order explained to me by my attorney.
2.

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I have either read and understood the Protective Order or have had the

I understand the terms of the Protective Order and agree to comply

with and to be bound by such terms.
3.

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If I receive documents or information designated as “Confidential” or

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“Attorneys’ Eyes Only” (as those terms are defined in the Protective Order), I

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understand that such information is provided to me pursuant to the terms and

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restrictions of the Protective Order.
4.

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I agree to hold in confidence and not further disclose or use for any

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purpose other than as expressly permitted by the Protective Order any documents or

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information disclosed to me pursuant to the terms of the Protective Order.
5.

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I hereby submit myself to the jurisdiction of the United States District

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Court for the Central District of California for resolution of any matter or dispute

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pertaining to the Protective Order and my receipt of information or documents

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pursuant to the Protective Order.

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Date:

Signature:

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Name:

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Address:

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[PROPOSED] STIPULATED PROTECTIVE ORDER
LA1 180138v2 10/21/11