Sprint Nextel Corporation et al v. Ezcom Inc et al

Filing 39

DENIED PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 38 . DENIED WITHOUT PREJUDICE. NO RULE 26 GOOD CAUSE DECLARATION OR STATEMENT. (rh)

Matthew A. Lesnick (SBN 177594)
[e-mail]
Andrew A. Cahill (SBN 233798)
[e-mail]
LESNICK PRINCE LLP
185 Pier Avenue, Suite 103
Santa Monica, CA 90405
Telephone: [phone]
Facsimile: 310-396-0963
James B. Baldinger (Florida Bar No. 869899)
[e-mail]
David B. Esau (Florida Bar No. 650331)
[e-mail]
CARLTON FIELDS, P.A.
CityPlace Tower
525 Okeechobee Blvd, Suite 1200
West Palm Beach, FL 33401-6350
DENIED WITHOUT PREJUDICE
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SPRINT NEXTEL
CORPORATION, BOOST
WORLDWIDE, INC., AND
VIRGIN MOBILE USA, L.P.,
Plaintiffs,
v.
EZCOM, INC. d/b/a TRICOM
COMMUNICATIONS, and
MICHAEL LI WU,
Defendants.

Case No.: 12-CV-0222-JFW (VBKx)
Judge: Hon. Victor B. Kenton
Courtroom: 16
Complaint Filed: January 9, 2012
Trial Date: January 29, 2013

STIPULATED PROTECTIVE ORDER
CHANGES HAVE BEEN MADE TO THIS
DOCUMENT

Pursuant to Federal Rule of Civil Procedure 26(c) and upon stipulation and
agreement by and between the respective counsel for the Parties, which include
Sprint Nextel Corporation, Boost Worldwide, Inc., and Virgin Mobile USA, L.P.
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Stipulation for Entry of Protective Order

(collectively, “Sprint” or “Plaintiffs”) and Defendants EZCOM, Inc. d/b/a Tricom
Communications, and Michael Li Wu (together, “Defendants”), and for good cause
shown,
IT IS HEREBY ORDERED that this Stipulated Protective Order shall control
the disclosure, dissemination, and use of confidential information in the Lawsuit:
1.

Scope of Order. This Order shall govern the production, use, and disclosure
of all information and materials produced by the Parties in response to any
discovery request in this action (including but not limited to documents,
interrogatory answers, responses to requests to admit and deposition
transcripts and exhibits), all information contained in those materials, and all
copies, excerpts, or summaries of those materials (collectively, “Discovery
Material”).

2.

Designation of Confidential Discovery Material. A Party may, in good faith,
designate as “CONFIDENTIAL” and therefore subject to the protections and
requirements of this Order, Discovery Material that consists of or includes
non-public information that would reasonably be subject to protection under
applicable statute, rule or precedent, including:
a.

Information and materials that a Party reasonably believes contain or
refer to information that is not generally available to or accessible by the
general public, that a Party believes contain or refer to confidential
information of third parties, information protected by a statute, rule or
regulation, trade secrets or other confidential business information,
including but not limited to research, development, business, or financial
information, or other confidential and/or proprietary analyses, company
guidelines, policies and procedures, market analyses, business valuations,
audit reports, commercial information, sales information, customer

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proprietary network information, customer lists and non-public
agreements with third parties;
b.

all documents created in response to or as a part of governmental
inquiries;

c.

all training policies, procedures, or documents related to security
practices;

d.

Discovery Material reflecting or relating to financial data, including but
not limited to documents concerning revenues, costs, and profits; and

e.

Discovery Material that, if disclosed to a business competitor, would tend
to damage the Party’s competitive position.

3.

Method of Designating Material as CONFIDENTIAL.
a.

Designation of confidential Discovery Material shall be made by
stamping the legend “CONFIDENTIAL” on the document. Multi-paged
Discovery Material that is bound together need only be so designated on
the first page. If the Discovery Material cannot be so labeled, it will be
designated CONFIDENTIAL in some other conspicuous manner. Any
confidential designation that is inadvertently omitted during document
production may be corrected by written notice to counsel of the Party
receiving the document.

b.

If originals or other non-bates stamped Discovery Material are made
available to a Party for inspection, the entirety of such material shall be
treated as CONFIDENTIAL pursuant to this Order until such time as it is
copied and the CONFIDENTIAL legend can be affixed to the copies of
any confidential Discovery Material.

The Party producing such

Discovery Material shall designate as CONFIDENTIAL any confidential
Discovery Material selected for copying by the receiving Party by
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stamping or requesting the stamping of the legend “CONFIDENTIAL”
on the copies of such Discovery Material. All original or other non-bates
stamped Discovery Material and information contained therein that is
reviewed, but not selected for copying, by the receiving Party shall be
treated as CONFIDENTIAL pursuant to this Order.
c.

Information conveyed or discussed in deposition testimony or a court
proceeding may be designated CONFIDENTIAL by an indication on the
record at the deposition or court proceeding, or by written notice of the
specific pages and lines of testimony that are CONFIDENTIAL within
twenty-one (21) days after receipt of the transcript of the deposition or
court proceeding. Each Party shall attach a copy of any such written
notice to all copies of the transcript within its possession, custody, or
control. While the twenty-one (21) day period is pending, the Parties will
treat the transcript and the information contained therein as
CONFIDENTIAL in accordance with this Order.

4.

Material Designated FOR ATTORNEYS’ EYES ONLY.

A Party may

designate Discovery Material that it deems highly confidential as being FOR
ATTORNEYS’ EYES ONLY, following the same procedure set forth in
section 3 above. Designation of for attorneys’ eyes only Discovery Material
shall be made by stamping or writing the legend “FOR ATTORNEYS’ EYES
ONLY” on the document.

Such designation on the first page of bound

documents is sufficient to render all documents in the packet FOR
ATTORNEYS EYES ONLY.

Only the Parties’ attorneys may review

materials designated FOR ATTORNEYS’ EYES ONLY. The attorneys may
not share these documents or the information contained in these documents
with the Parties or any third party.

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5.

Failure to Designate Material as CONFIDENTIAL or FOR ATTORNEYS’
EYES ONLY. The failure of a party to designate information or documents
as “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY” in
accordance with this Order, and the failure to object to such a designation,
shall not preclude a Party at a later time from subsequently designating or
objecting to the designation of such information or documents as
“CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY.” The Parties
understand and acknowledge that a Party’s failure to designate information or
documents as “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY”
relieves the other party of any obligation of confidentiality until such a
designation is made. Promptly after any such subsequent designation, the
receiving Party shall mark with the appropriate legend “CONFIDENTIAL” or
“FOR ATTORNEYS’ EYES ONLY” any such subsequently designated
documents, and all documents containing any such subsequently designated
information will be thereafter appropriately treated in accordance with this
Order.

6.

Use of Discovery Material, CONFIDENTIAL Discovery Material and FOR
ATTORNEYS’ EYES ONLY Discovery Material. All Discovery Material,
including but not limited to CONFIDENTIAL Discovery Material and FOR
ATTORNEYS’ EYES ONLY Discovery Material, may be used solely for the
purposes of this action and for no other purpose. Any person found to have
made an impermissible use of Discovery Material will be subject, without
limitation, to civil and criminal penalties for contempt of court.
CONFIDENTIAL Discovery Material may be disclosed to the following
persons:
i. any court before which this action is pending (including this Court)
and any court to which an appeal in this action may arise;
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ii. the Parties, including present officers, directors, and other
employees of the Parties, to the extent reasonably necessary for the
prosecution or defense of claims in this Lawsuit;
iii. in-house and outside counsel representing the Parties and their
support personnel whose functions require access to such
CONFIDENTIAL Discovery Material;
iv. any actual or potential witness or deponent to the extent reasonably
necessary for the preparation for or giving of his or her deposition or
testimony in this action, and counsel for such witness or deponent;
v. outside vendors who perform copying, computer classification, or
similar clerical functions, but only for the purposes of performing
such services and only so long as necessary to perform those
services;
vi. court reporters and other persons engaged in preparing transcripts of
testimony or hearings for this Lawsuit;
vii. experts retained or consulted by counsel of record for assistance in
the preparation or prosecution of claims or defenses in this action, to
the extent reasonably necessary for such experts to prepare a written
opinion or to prepare to testify or to assist counsel in this action; and
viii. any other person who is so designated by order of any court before
which this action is pending (including this Court), or by agreement
of the producing party.
No CONFIDENTIAL Discovery Material may be disclosed to persons
identified in subparagraphs (iv), (vii), and (viii) until they have reviewed this
Order and have either: (1) executed a written agreement in the form attached
hereto as Exhibit A, which executed agreements shall be maintained by
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Stipulation for Entry of Protective Order

counsel of record for the disclosing party and provided on request to other
counsel of record; or (2) agreed on the record at a deposition to be bound by
its terms.
FOR ATTORNEYS’ EYES ONLY Discovery Material may be disclosed to
the following persons:
i.

any court before which this action is pending (including this
Court) and any court to which an appeal in this action may arise;
and

ii.

in-house and outside counsel representing the Parties and their
support personnel whose functions require access to such material.

7.

Use of CONFIDENTIAL Discovery Material at Deposition. Any Party may
use CONFIDENTIAL Discovery Material pursuant to the terms of this Order
as an exhibit in a deposition taken in this Lawsuit, subject to such exhibit
being marked as CONFIDENTIAL.

If deposition testimony concerning

CONFIDENTIAL Discovery Material is requested or elicited, counsel for the
producing Party may request that the room in which the deposition is being
taken shall be closed except to persons who are permitted access to such
information under the terms of this Order. Each deposition shall be treated as
CONFIDENTIAL without need for designation until twenty-one (21) days
after each Party has received a copy of the transcript, at which point a Party
may designate portions of the transcript as “CONFIDENTIAL” Discovery
Material.
8.

Use of FOR ATTORNEYS’ EYES ONLY Discovery Material at Deposition.
A Party may use FOR ATTORNEYS’ EYES ONLY Discovery Material
pursuant to the terms of this Order as an exhibit in a deposition taken in this
Lawsuit only when the deponent is an officer, director, or other employee of
the Party that produced the FOR ATTORNEYS’ EYES ONLY Discovery
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Material, subject to such exhibit being marked FOR ATTORNEYS’ EYES
ONLY.

If deposition testimony concerning FOR ATTORNEYS’ EYES

ONLY Discovery Material is requested or elicited, counsel for the producing
Party may request that the room in which the deposition is being taken shall
be closed except to persons who are permitted access to such information
under the terms of this Order. Each deposition in which FOR ATTORNEYS’
EYES ONLY Discovery Material are used shall be treated as FOR
ATTORNEYS’ EYES ONLY without need for designation until twenty-one
(21) business days after the producing Party has received a copy of the
transcript, at which point the producing Party may designate portions of the
transcript as “FOR ATTORNEYS’ EYES ONLY” Discovery Material.
9.

Responding to Subpoenas Requesting CONFIDENTIAL Discovery Material
or FOR ATTORNEYS’ EYES ONLY Discovery Material. If a person in
possession of CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY
Discovery Material who is not the producing Party with respect to that
Material receives a subpoena or other request seeking production or other
disclosure of CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY
Discovery Material, he/she/it shall immediately give written notice to counsel
for the producing Party identifying the CONFIDENTIAL or FOR
ATTORNEYS’ EYES ONLY Discovery Material sought and the date and
time production or other disclosure is required. In no event should production
or disclosure be made without written approval by counsel of the producing
Party or by further order of the Court or another court of competent
jurisdiction.

10.

Filing CONFIDENTIAL Discovery Material or FOR ATTORNEYS’ EYES
ONLY Discovery Material Under Seal. Whenever any document designated
as “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY” or any
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pleading containing CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY
information is filed with the Court, such document or pleading shall be filed
under seal and shall display a bold heading on its first page in substantially
the following form: “FILED UNDER SEAL - SUBJECT TO COURT
ORDER PROHIBITING PUBLIC DISCLOSURE.” Materials presented as
sealed documents pursuant to this Order shall be in a sealed envelope or other
appropriately sealed container on which shall be endorsed the case caption, an
indication of the nature of the contents of the sealed envelope or container,
the filing date of this Order, and the identity of the Party filing the documents.
The Clerk of Court is directed to maintain under seal all such
CONFIDENTIAL and FOR ATTORNEYS’ EYES ONLY Discovery
Material.
11.

Challenges to Designation of Discovery Material as “CONFIDENTIAL” or
“FOR ATTORNEYS’ EYES ONLY.”

A Party who receives Discovery

Material designated as “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES
ONLY” may challenge the designation at any time by motion to this Court.
In the event a designation is challenged, the party who designated the
document(s) or information as “CONFIDENTIAL” or “FOR ATTORNEYS’
EYES ONLY” bears the burden of proof that such documents and/or
information contain or consist of trade secrets, confidential proprietary
business information or are otherwise subject to protection pursuant to
applicable law. The Parties agree to maintain the confidentiality of any such
CONFIDENTIAL and FOR ATTORNEYS’ EYES ONLY Discovery
Material and to use it only in the manner authorized by this Order unless and
until the Court rules that it may be treated otherwise.
12.

Exemptions for Authors and Material Independently Obtained or Publicly
Available. Nothing in this Order shall be deemed in any way to restrict the
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use of documents or information which are lawfully obtained or publicly
available to a Party independent of discovery in this action, whether or not the
same material has been obtained during the course of discovery in this
Lawsuit and whether or not such documents or information have been
designated “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES ONLY.”
Accordingly,
a.

Nothing in this Order shall be deemed to prohibit disclosure of any
Discovery Material that is currently in the Party’s lawful possession,
custody, or control; that later comes into the possession of the Party from
others lawfully in possession of such information or who are not Parties
or bound by this or a comparable Order or obligation; that is or has
become public knowledge through no fault of the Party having the
obligation of confidentiality; or that is required to be disclosed by any
law, regulation, order, or rule of any governmental authority.

b.

Nothing in this Order shall be deemed to prohibit disclosure of any
Discovery

Material

designated

“CONFIDENTIAL”

or

“FOR

ATTORNEYS’ EYES ONLY” to such persons as appear on the face of
the document to be its author.
c.

Nothing in this Order shall be deemed to limit or prohibit any manner of
use of any Discovery Material designated “CONFIDENTIAL” or “FOR
ATTORNEYS’

EYES

ONLY”

by

the

Party

producing

such

CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY Discovery
Material.
13.

No Waiver of Objections. Nothing in this Order shall constitute a waiver of a
Party’s right to object to the production of Discovery Material or to demand
more stringent restrictions upon the treatment and disclosure of any

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Discovery Material on the ground that it contains particularly sensitive
information.
14.

No Waiver of Privilege.
a.

The terms of this Order shall in no way affect a Party’s right to withhold
information on grounds of privilege or immunity from discovery such as,
by way of example and not by way of limitation, attorney-client privilege
or work product doctrine.

b.

The production of any document or other information during discovery
shall be without prejudice to any claim that such material is protected
from discovery under the attorney-client or other privilege such as work
product, and no party shall be held to have waived any rights by such
production. Upon written request by the producing Party, the receiving
Party shall: (a) return the original and all copies of such inadvertently
produced privileged documents; (b) shall not review, copy, or
disseminate the privileged documents or information; and (c) shall not
use such documents or information for any purpose absent further ruling
by the Court.

15.

No Admission. Neither this Order nor any stipulation therefore, nor any
disclosure or use of information or documents, in whatever form, pursuant to
this Order, shall be deemed an admission, waiver, or agreement by either
Party to a designation of “CONFIDENTIAL” or “FOR ATTORNEYS’ EYES
ONLY” hereunder nor in relation to the merits of any claims or defenses
raised in this Lawsuit.

16.

Court Retains Jurisdiction. The Court shall retain jurisdiction over the Parties
for the purpose of ensuring compliance with this Order and granting such
amendments, modifications, and additions to this Order and such other and
further relief as may be necessary.
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17.

Post-Action Treatment of CONFIDENTIAL Discovery Material and FOR
ATTORNEYS’ EYES ONLY Discovery Material. No later than ninety (90)
days after the expiration of the time in which an appeal may be filed or after
an unappealable final resolution or settlement of this action, any person
possessing any CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY
Discovery Material shall return all such CONFIDENTIAL and FOR
ATTORNEYS’ EYES ONLY Discovery Material, including all copies,
extracts, and summaries, to the producing Party, or, in lieu thereof, shall
certify in writing that all CONFIDENTIAL and FOR ATTORNEYS’ EYES
ONLY Discovery Material has been destroyed, except that counsel of record
may retain for their files copies of any paper served or filed with the Court in
this action, including portions of any such papers that contain or disclose
CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY Discovery Material.

18.

Continuing Effect of this Order. Neither the final disposition of this Lawsuit,
by judgment, dismissal, settlement, or otherwise, nor the termination of
employment of any person who had access to any CONFIDENTIAL or FOR
ATTORNEYS’ EYES ONLY Discovery Material shall relieve any person
from the obligations of maintaining both the confidentiality and the
restrictions of use of anything disclosed pursuant to this Order.

19.

Modification of this Order.
a.

Any Party may apply to the Court for modification of this Order at any
time or for the establishment of additional protection governing the use
of CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY Discovery
Material, including the use of such material in submissions to the Court.
Nothing in this Order shall preclude the Parties from agreeing to amend
or modify this Order by stipulation, or from agreeing to extend it to other
legal proceedings, so long as any such agreement is in writing and
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applies only to CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY
Discovery Materials that were produced by the signatories to such an
agreement.
b.

This Order may be amended without leave of the Court by agreement of
outside counsel for the Parties in the form of a written stipulation filed
with the Court.

20.

Entry and Enforcement of Order by the Court. The Parties submitted this
Order for entry by the Court and agree to be bound by the terms upon receipt
of written assent by the Parties, as if the Order had been entered on that date.
The Court may impose sanctions on any person possessing or granted access
to CONFIDENTIAL or FOR ATTORNEYS’ EYES ONLY Discovery
Material pursuant to this Order who discloses or uses the CONFIDENTIAL
Discovery Material or FOR ATTORNEYS’ EYES ONLY Discovery Material
for any purpose other than as authorized by this Order or who otherwise
violates the terms of this Order. All persons to whom CONFIDENTIAL
Discovery Material or FOR ATTORNEYS’ EYES ONLY Discovery Material
is disclosed shall be subject to the jurisdiction of this Court for the purpose of
enforcing this Order. This Order shall continue in full force and effect, and
shall be binding upon the Parties and all persons to whom CONFIDENTIAL
Discovery Material or FOR ATTORNEYS’ EYES ONLY Discovery Material
has been disclosed, both during and after the pendency of this case.
DENIED WITHOUT PREJUDICE. NO RULE 26 GOOD CAUSE
DECLARATION OR STATEMENT.
IT IS SO ORDERED.
Done and Ordered this _30TH_ day of ___AUGUST____, 2012.
/s/
Honorable Victor B. Kenton, USMJ
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