Radar Pictures Inc et al v. Houlihan Smith and Company Inc et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 24 . **See Order for details.** (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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10 RADAR PICTURES, INC., et al.,

Case No.: CV 12-1124 MMM (FFMx)

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[PROPOSED] PROTECTIVE ORDER

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Plaintiffs,

Note changes made by the Court.

vs.

13 HOULIHAN SMITH & COMPANY,
INC., et al.,
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Defendants.
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The Court finds that good cause exists for a Protective Order on the terms and

17 conditions stipulated by the parties.
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Therefore, IT IS ORDERED as follows:

19 1.

DESIGNATED MATERIAL

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1.1

Information, materials, and/or discovery responses may be designated

21 pursuant to this Protective Order by the person or entity producing or lodging it or
22 by any party to this action (the “Designating Party”) if: (a) produced or served,
23 formally or informally, pursuant to the Federal Rules of Civil Procedure or in
24 response to any other formal or informal discovery request in this action; and/or (b)
25 filed or lodged with the Court. All such information and material and all
26 information or material derived therefrom constitutes “Designated Material,” (which
27 includes materials designated “CONFIDENTIAL” as provided below) under this
28 Protective Order. Unless and until otherwise ordered by the Court or agreed to in
Freund & Brackey LLP
427 North Camden Drive
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[PROPOSED] PROTECTIVE ORDER

1 writing by the parties, all material designated under this Protective Order shall be
2 used only for purposes of this litigation, and shall not be used or disclosed by the
3 party receiving Designated Material except as provided under the terms of this
4 Protective Order. (For purposes of this Protective Order, “disclose” means to show,
5 furnish, or provide original or a copy of the referenced material or document).
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1.2

Subject to the limitations set forth in this Protective Order, a

7 designation of “CONFIDENTIAL” means information, whether or not embodied in
8 any physical medium, which the Designating Party believes in good faith has
9 significant competitive value, which is not generally known to others, and which the
10 Designation Party would not normally reveal to third parties except in confidence,
11 or has undertaken with others to maintain in confidence, including, but not limited
12 to, any oral, written, or recorded material that consists of or contains trade secrets
13 (as defined in California Civil Code Section 3426.1(d) or other confidential
14 research, development, or commercial information (as defined in Federal Rule of
15 Civil Procedure 26(c)(1)(G)). Information may also be designated
16 “CONFIDENTIAL” if the Designating Party believes in good faith that the
17 information falls within the right to privacy guaranteed by the laws of the United
18 States and/or California.
19 2.

ACCESS BY PARTIES

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2.1

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Materials designated CONFIDENTIAL may only be reviewed by or disclosed

Materials Designated CONFIDENTIAL.

22 to:
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2.1.1 Persons who appear on the face of Designated Material marked

24 CONFIDENTIAL as an author, addressee, or recipient thereof;
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2.1.2 Current officers, directors, and employees of the parties to this

26 action.
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2.1.3 “Outside Counsel” (which means and is defined as counsel of

28 record, including the partners, associates, agents, and employees of counsel of
Freund & Brackey LLP
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[PROPOSED] PROTECTIVE ORDER

1 record, except for agents or employees who have been retained or employed by
2 Outside Counsel as experts or consultants to assist in the preparation of the case) for
3 the parties to this action to the extent reasonably necessary to render professional
4 services in this action;
2.1.4 Vendors with whom Outside Counsel of record for the parties to

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6 this litigation have contracted for purely clerical functions, such as the copying of
7 documents;
2.1.5 Consultants requested by Outside Counsel to furnish expert or

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9 litigation support services in this litigation; and
2.1.6 Subject to Subsection 5.3 and Section 7 below, witnesses at

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11 deposition and/or at trial. (FFM)
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2.2

Each person, other than Outside Counsel of record for the parties, to

13 whom any Designated Material may be disclosed pursuant to the provisions in this
14 Protective Order shall, prior to the time such Designated Material is disclosed to him
15 or her, be provided with a copy of this Protective Order and shall certify under
16 penalty of perjury that he or she has carefully read the Protective Order and fully
17 understands its terms and agrees to be bound thereby. This certificate shall be in the
18 form attached as Exhibit A hereto. Outside Counsel who make any disclosure of
19 Designated Material shall retain each original executed certificate and, upon written
20 request, shall circulate copies to all Outside Counsel at the termination of this
21 action.
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2.3

All counsel for parties who have access to information or material

23 designated as Designated Material under this Protective Order acknowledge they are
24 bound by this Order and submit to the jurisdiction of the court for purposes of
25 enforcing this Order.
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USE OF DESIGNATED MATERIAL BY DESIGNATING PARTY

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Nothing in this Protective Order shall limit any Designating Party’s use of its

28 own documents and information, nor shall it prevent the Designating Party from
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

1 disclosing its own confidential information or documents to any person. Such
2 disclosure shall not affect any designations made pursuant to the terms of this
3 Protective Order, so long as the disclosure is made in a manner that is reasonably
4 calculated to maintain the confidentiality of the information.
5 4.

PROCEDURE FOR DESIGNATING MATERIAL

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Documents, materials, and discovery responses, in whole or in part, may be

7 designated as CONFIDENTIAL as follows:
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4.1

The producing or responding party shall designate as CONFIDENTIAL

9 on each page of the materials prior to production.
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4.2

When a party wishes to designate as CONFIDENTIAL materials

11 produced by someone other than the Designating Party, such designation shall be
12 made:
4.2.1 Within twenty-five (25) days from the last date that the

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14 Designating Party receives copies of the materials from the producing or disclosing
15 entity; and
4.2.2 By written notice to all parties to this action and to the Producing

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17 Party, if such party is not a party to this action, identifying the materials to be
18 designated with particularity (either by production numbers or by providing other
19 adequate identification of the specific material).
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4.3

Upon notice of designation, all persons receiving notice of the

21 requested designation of materials shall:
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4.3.1 Make no further disclosure of such Designated Material or

23 information contained therein, except as allowed in this Protective Order;
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4.3.2 Take reasonable steps to notify any persons known to have

25 possession or access to such Designated Material of the effect of such designation
26 under this Protective Order; and
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427 North Camden Drive
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[PROPOSED] PROTECTIVE ORDER

4.3.3 Take reasonable steps to reclaim or prevent access to such

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2 Designated Material or information in the possession or control of any person not
3 permitted to have access under the terms of this Protective Order.
4 5.

PROCEDURE FOR DESIGNATING DEPOSITIONS

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5.1.

Deposition transcripts or portions thereof may be designated as

6 CONFIDENTIAL by a party during deposition testimony or at the completion of
7 said deposition, on the record, taken in this action, in which case the portion of the
8 transcript containing Designated Material shall be identified in the transcript by the
9 Court Reporter as CONFIDENTIAL. The designated testimony shall be bound in a
10 separate volume and marked by the reporter accordingly.
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5.2.

Where testimony is designated at a deposition, the Designating Party

12 shall have the right to exclude, at those portions of the deposition, all persons not
13 authorized by the terms of this Protective Order to receive such Designated
14 Material.
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5.3.

Notwithstanding the provisions set forth in Sections 2 and 3 of this

16 Protective Order above, any party may mark Designated Material as a deposition
17 exhibit and examine any witness thereon, provided that the exhibit and related
18 transcript pages receive the same confidentiality designation as the original
19 Designated Material. Any person who is shown a deposition exhibit comprised of
20 Designated Material, but who is not otherwise entitled to access such material under
21 Sections 2 and 3 above, shall not be allowed (except by express permission of the
22 Designating Party) to keep a copy of the deposition exhibit when given the
23 opportunity to review the deposition transcript for accuracy following the
24 deposition.
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5.4

Any party may, within thirty (30) days after receiving a deposition

26 transcript, designate pages of the transcript and/or its exhibits as Designated
27 Material. If any party so designates such material, the parties or deponents shall
28 provide written notice of such designation to all parties within the 30-day period.
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

1 Designated Material within the deposition transcript or the exhibits thereto may be
2 identified in writing or by underlining the relevant portions and marking such
3 portions CONFIDENTIAL. The parties may modify this procedure for any
4 particular deposition or proceeding through agreement on the record at such
5 deposition or proceeding or otherwise by written stipulation without further order of
6 the court.
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COPIES

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All complete or partial copies of Designated Material shall also be deemed

9 subject to the terms of this Protective Order. No copies of Designated Material shall
10 be made by the receiving party except as is reasonably necessary for their own use,
11 which copies shall contain the same legending, and which shall be subject to the
12 same restrictions, as the documents originally produced.
13 7.

COURT PROCEDURES

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7.1

Disclosure of Designated Material to Court Officials. Subject to the

15 provisions of this section, Designated Material may be disclosed to the Court, Court
16 officials or employees involved in this action (including court reporters, persons
17 operating video recording equipment at depositions, and any special master or
18 referee appointed by the Court) and the jury in this action, and any interpreters
19 interpreting on behalf of any party or deponent.
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7.2

Obligations of the Court. The parties agree that the employees of the

21 Court or the Clerk’s office have no duty to the parties to maintain the confidentiality
22 of any information in any papers filed with the Court or as otherwise ordered by the
23 Court.
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7.3

Filing Designated Material with the Court. The parties shall not file

25 any material with the Court under seal, except in accordance with Local Rule 7926 5.1.
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7.4

Retrieval of Designated Material. The party lodging the Designated

28 Material shall be responsible for retrieving such Designated Material from the Court
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

1 following the final termination of the action (including after any appeals). Within
2 sixty (60) days after receiving notice of the entry of an order, judgment, or decree
3 finally disposing of the action, including appeals therefrom, all persons having
4 received Designated Material shall return such material and all copies thereof to
5 counsel for the producing party, or certify destruction thereof. Except as otherwise
6 ordered, Outside Counsel shall be entitled to retain court papers, deposition, and
7 trial transcripts and attorney work product provided that such counsel and
8 employees of such counsel shall not disclose any such information or material
9 contained in such court papers or transcripts or attorney work product to any person
10 except pursuant to court order or written agreement with the producing party of the
11 information or material.
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7.5

Failure to File Under Seal. If any party fails to file Designated Material

13 under seal, the Designating Party or any party to this action may request that the
14 Court place the Designated Material under seal within twenty (20) days of the filing
15 of said Designated Material. The Clerk of the Court is directed to comply with such
16 request if consistent with Local Rule 79-5.1. (FFM)
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7.6.

Use of Designated Material in Open Court. The parties shall not

18 present or quote from any Designated Material in open court, unless the Court shall
19 order otherwise. Presentation of, or quotations from, Designated Material shall be
20 heard by the Court under such conditions and safeguards as the Court may impose to
21 prevent improper disclosure of Designated Material. The parties shall meet and
22 confer concerning appropriate methods for dealing with Designated Material at trial.
23 8.

OBJECTIONS

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8.1

A party may challenge the propriety of any designation under this

25 Protective Order at any time. A challenge may be made by serving on all other
26 parties a captioned notice of objection, which shall identify with particularity the
27 Designated Material as to which the designation is challenged and state the basis for
28 each challenge (“Notice of Objection”). Service of a Notice of Objection shall be
Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

1 made by facsimile and by mail. Notwithstanding any challenge to the designation of
2 material as CONFIDENTIAL, such material shall be treated in accordance with its
3 designation and subject to the provision hereof unless re-designated as described
4 below.
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8.2

On, but not before, the fifteenth (15th) day after service of a Notice of

6 Objection, the challenged material shall be deemed re-designated unless the
7 Designating Party has served by fax or hand delivery during normal business hours
8 a response to the Notice of Objection setting forth legal and factual grounds upon
9 which the Designating Party bases its position that the materials should maintain the
10 original designation or for designating the material otherwise. In the event of a
11 motion to the Court to change the designation, the material at issue may be
12 submitted to the Court for in camera inspection. It shall be the burden of the
13 Designating Party under such circumstances to establish that the information so
14 designated is properly designated CONFIDENTIAL within the meaning of this
15 Protective Order. Upon the timely filing of such a motion, the original designations
16 shall remain effective until ten (10) days after service of notice of entry of an order
17 re-designating the materials. Any such motion must comply with Local Rule 37.
18 (FFM)
19 9.
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CLIENT COMMUNICATION
Nothing in this Protective Order shall prevent or otherwise restrict

21 counsel from rendering advice to their clients and, in the course of rendering such
22 advice, relying upon the examination of Designated Material. In rendering such
23 advice and otherwise communicating with the client, however, counsel shall not
24 make specific disclosure of any Designated Material, except as permitted by this
25 Protective Order.
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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

1 10.

NO PREJUDICE

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10.1 This Protective Order shall not diminish any existing obligation or right

3 with respect to Designated Material, nor shall it prevent a disclosure to which the
4 Designating Party consents in writing before the disclosure takes place.
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10.2 Unless all parties stipulate otherwise, evidence of the existence or

6 nonexistence of a designation under this Protective Order shall not be admissible or
7 commented upon to the trier of fact for any purpose during any proceeding on the
8 merits of this action.
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10.3 If any person required to produce documents inadvertently produces

10 party any Designated Material without marking it with the appropriate legend, the
11 producing party may give written notice to the receiving party, including
12 appropriately stamped copies of the Designated Material, that the document, things,
13 or response is deemed Designated Material and should be treated as such in
14 accordance with the provisions of this Protective Order.
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10.4 The restrictions as to use or dissemination of information or materials,

16 set forth in any of the preceding paragraphs, shall not apply as to:
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10.4.1 Any information which at the time of the designation under this

18 Protective Order was generally available to the public;
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10.4.2 Any information which after designation under this Protective

20 Order becomes generally available to the public through no act, or failure to act,
21 attribute to the receiving party or its counsel;
22 11.

MODIFICATION AND SURVIVAL

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11.1 Modification; Addition of Parties to this Stipulation.

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11.1.1 All parties reserve the right to seek modification of this

25 Protective Order at any time for good cause. The parties agree to meet at confer
26 prior to seeking to modify this Protective Order for any reason. The restrictions
27 imposed by this Protective Order may only be modified or terminated by written
28 stipulation of all parties or by order of this Court. (FFM)
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427 North Camden Drive
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[PROPOSED] PROTECTIVE ORDER

11.2 Parties to this action who are not listed herein or who become parties to

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2 this action after the latest date of execution may become parties to this Protective
3 Order, and thereby be bound by all the terms and conditions stated herein, by
4 executing a written agreement thereto, to be signed by all Outside Counsel for the
5 parties, and which designates Outside Counsel for the additional party.
Notwithstanding the provisions for return or destruction of Designated

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7 Material, except as otherwise ordered, Outside Counsel may retain pleadings,
8 attorney and consultant work product, deposition transcripts and exhibits containing
9 Designated Material, as well as one copy of each item of Designated Material for
10 archival purposes.
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NO CONTRACT

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This stipulation is for the Court’s consideration and approval as an order.

13 This order shall not be construed to create a contract between the parties or between
14 the parties and their respective counsel.
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COURT’S RETENTION OF JURISDICTION

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The Court retains jurisdiction to make such amendments, modifications, and

17 additions to this Protective Order as it may from time to time deem appropriate.
18 14.

Nothing herein shall be construed as relieving anyone from fully

19 complying with any legal obligation imposed by a duly issued subpoena or
20 other court, administrative, or legislative process. (FFM)
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IT IS SO ORDERED.

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Date: July 26, 2012
/S/ FREDERICK F. MUMM
Hon. Frederick F. Mumm
United States Magistrate Judge

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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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EXHIBIT A

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CERTIFICATION
I,

, hereby certify my understanding that confidential

information is being provided to me pursuant to the terms and restrictions of the
Protective Order in the matter of Radar Pictures, Inc. v. Houlihan Smith &
Company, Case No. CV 12-01124-MMM (FFMx). I have been given a copy of that
Order and have read it. I agree to be bound by the Order. I will only reveal
Designated Material, as that term is defined in the Order, including copies, notes, or
other transcriptions made therefrom, to the extent that I do so according to the Order
and in a secure manner to prevent unauthorized access to it. No later than thirty (30)
days after the conclusion of this action, I will either return any Designated Material I
have received, including copies, notes, or other transcriptions made therefrom, to the
counsel who originally provided me with such, or destroy it. I hereby consent to the
jurisdiction of the United States District Court of the Central District of California
for the purpose of enforcing the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct and
that this certification is executed this

day of

, at

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By:
Address:

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Phone:

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Freund & Brackey LLP
427 North Camden Drive
Beverly Hills, CA 90210

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[PROPOSED] PROTECTIVE ORDER

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