Maren Equipment Leasing et al v. DHL Express USA

Filing 61

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton re Stipulation for Protective Order 60 . (See Order for details) (rh)

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EDWIN V. WOODSOME, JR. (SBN 56305)
Email: [e-mail]
CHRISTOPHER S. RUHLAND (SBN 175054)
Email: [e-mail]
JAMES C. WALD (SBN 229108)
Email: [e-mail]
DECHERT LLP
US Bank Tower
633 West 5th Street
37th Floor
Los Angeles, CA 90071-2013
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
DHL Express (USA), Inc.
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MAREN EQUIPMENT LEASING,
INC., a California corporation, GARY
E. SMITH, an individual, and ELLIOT
MASON, an individual,

Case No. 2:12-CV-08244-ABC (VBKx)
PROTECTIVE ORDER

Plaintiffs,

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v.

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DHL EXPRESS (USA), INC., an Ohio
corporation, et al.,

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Defendant.

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D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

14589840.2

[PROPOSED] PROTECTIVE ORDER
CASE NO. 2:12-CV-08244-ABC (VBKX)

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The Parties, having shown good cause, seek a protective order limiting

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disclosure thereof in accordance with Federal Rule of Civil Procedure 26(c).

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Therefore, it is hereby stipulated and ORDERED that:
I.

DESIGNATED MATERIAL

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Any documents, information or material produced or disclosed, formally or

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informally, in this action (in whatever form, paper, electronic, video or otherwise)

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and any material lodged with the Court may be designated as “CONFIDENTIAL”

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or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” by the person or entity

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producing or lodging it or by any party to this action (the “Designating Person”).

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All such information and material and all information or material derived from it

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constitutes “Designated Material” under this Order. The designation may be made

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to avoid invasions of individual privacy and to protect proprietary information,

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confidential and/or proprietary business and/or financial information, and/or trade

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secrets relating to the Designating Person’s business, personal, and/or financial

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affairs. The designation shall be either “CONFIDENTIAL” or “CONFIDENTIAL

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— ATTORNEYS’ EYES ONLY” so long as the Designated Material so designated

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complies with the definitions in this section.

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A.

CONFIDENTIAL INFORMATION: The parties may designate as

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“Confidential” those materials that contain or constitute information that is subject

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to protection as private proprietary, trade secret, or otherwise commercially

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sensitive. Material may also be designated as “Confidential” if the Designating

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Party in good faith believes that disclosure of materials in this case may present a

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risk of injury to the legitimate business interests of the Disclosing Party or any

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other legitimate interest. Confidential information includes, but is not limited to,

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trade secrets, all Materials reflecting, referring to or evidencing any information

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deemed confidential by any local, state, or federal statute, ordinance, regulation, or

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other law, business plans or forecasts, financial plans and forecasts, operational

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plans and forecasts, and all private or sensitive commercial, financial, personal or

D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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[PROPOSED] PROTECTIVE ORDER
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personnel, underwriting, rating, claims and insurance policy information. The

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“Confidential Material” designation shall not include any material that has been

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placed in the public domain and/or has been made available as a matter of public

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record.

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B.

CONFIDENTIAL — ATTORNEYS’ EYES ONLY: The parties may

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designate as “Confidential — Attorneys’ Eyes Only” those materials that contain or

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constitute information that (1) is subject to protection as proprietary, trade secret, or

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otherwise commercially sensitive, and (2) if disclosed to any other party in this

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action (including without limitation co-plaintiffs), could work to the competitive

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disadvantage of the disclosing party. Material designated as “Confidential -

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Attorneys’ Eyes Only” shall not include material that has been placed in the public

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domain and/or has been made available as a matter of public record.

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C.

The term “Material(s)” as used in this Order shall include but not be

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limited to deposition and hearing transcripts, contracts, agreements, manuscripts,

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correspondence, telegrams, telexes, text messages, e-mail communications,

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computer printouts, computer disks, thumb drives and hard drives and all

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information stored thereon, PowerPoint presentations, excel spreadsheets, reports,

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records, schedules, customer lists, diaries, invoices, purchase orders, accounting

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records and work sheets, charts, notes, estimates, summaries, inventories, drawings,

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blueprints, patent applications, minutes of meetings, and memoranda including

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intercorporate, intracorporate, interoffice and intraoffice memoranda, and

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memoranda regarding conferences, conversations or telephone conversations, any

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and all other taped, recorded, filmed, written or typed matters of any kind or

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description, including the originals and all nonidentical copies, whether different

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from the originals by reason of any notation made on such copies or otherwise, all

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interrogatory answers, answers to requests for admissions and depositions

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(stenographic or video), any physical objects, samples, designs or other items.

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D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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[PROPOSED] PROTECTIVE ORDER
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D.

The “Confidential” and “Confidential — Attorneys’ Eyes Only”

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designations may include those portions of other Materials (including, without

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limitation, deposition and hearing transcripts) that excerpt, summarize, or otherwise

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disclose any Material designated as “Confidential” or “Confidential — Attorneys’

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Eyes Only.”

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II.

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ACCESS
Designated Material shall not be used or disclosed for any purposes other

than the litigation of this action and may be disclosed only as follows:
A.

discussed with anyone other than the following:

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Material designated as “Confidential” shall not be disclosed to or

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the parties, limited to in-house counsel and employees directly

involved in the litigation;

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2.

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counsel;

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3.

the authors, addressees, or originators of the Material;

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4.

experts who have been retained by the parties;

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5.

the Court, its staff, and court reporters;

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6.

a person to whom reference is made in a deposition, document

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or other discovery, but only as to information concerning that individual;

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counsel for the parties, and persons employed by the parties’

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third persons engaged in duplicating Materials in connection

with this litigation; and

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witnesses or potential witnesses in this action, provided that

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prior to disclosure they comply with section XII of this Order and shall not

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retain any copies of Material designated “Confidential.”

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B.

Except pursuant to a stipulation between the parties or a subsequent

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Court order, Material designated as “Confidential — Attorneys’ Eyes Only” shall

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not be disclosed to or discussed with anyone other than the following:

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D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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[PROPOSED] PROTECTIVE ORDER
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1.

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outside counsel of record in this litigation and their employees

as required by their duties;

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2.

the authors, addressees or originators of the Material;

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3.

experts who have been retained by the parties (the term

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“experts” shall not include parties, employees of parties, or family members

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of parties);

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4.

the Court, its staff and court reporters; and

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third persons engaged in duplicating Materials for use in this

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litigation.

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C.

Material designated “CONFIDENTIAL — ATTORNEYS’ EYES

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ONLY” may not be disclosed to the officers, directors, in-house counsel, members

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and/or employees of parties to this action, except that Material designated

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“CONFIDENTIAL — ATTORNEYS’ EYES ONLY” may be disclosed to

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individuals to whom such designated Material was disclosed prior to initiation of

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the litigation set forth in the above-captioned action.

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D.

Copies may be made by or for the foregoing persons, provide that all

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copies are appropriately marked. All copies are subject to paragraph VIII of this

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Order.

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E.

The designation of any Material as “CONFIDENTIAL” or

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“CONFIDENTIAL — ATTORNEYS’ EYES ONLY” shall not preclude any party

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from showing the document to any person who appears as an author, addressee or

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recipient on the face of the document.

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III.

DESIGNATING MATERIAL

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The Disclosing Party’s failure to designate Material as “CONFIDENTIAL”

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or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” at the time of production

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or disclosure of the Material does not waive its right later to designate the Material

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

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After any designation, each Receiving Party shall treat the designated Material as

D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

14589840.2

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[PROPOSED] PROTECTIVE ORDER
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either “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES

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ONLY,” and subject to the protections of this order.

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When a party producing Material wishes to designate some portion as

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“CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY,” such

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designation shall be made by placing an appropriate legend on each page of the

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Material prior to production. If Material, such as native electronic files, cannot

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reasonably be designated as “CONFIDENTIAL” or “CONFIDENTIAL —

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ATTORNEYS’ EYES ONLY” by placing a legend on each page of the Material,

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the Disclosing Party may make such designation by affixing a label to the CD,

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DVD, or other medium used to compile the Materials. When a party wishes to

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designate as “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES

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ONLY” Material produced by someone other than the Designating Person, such

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designation shall be made: (a) within ten (10) business days from the date that the

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Designating Party receives notice that the Material has been produced; and (b) by

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notice to all parties, identifying with particularity the designated Material.

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IV.

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DESIGNATING DEPOSITIONS
A.

All testimony which refers to Designated Materials, and all deposition

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exhibits that consist of or contain Designated Materials shall automatically be

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deemed designated “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’

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EYES ONLY” in accordance with the level of protection given to the

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DESIGNATED MATERIALS discussed in the testimony or included in the

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deposition exhibit. Deposition transcripts or videos or portions thereof may be

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designated as “CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES

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ONLY” by a party either: (i) before the testimony is recorded, in which case the

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transcript or video of the designated testimony shall be bound in a separate volume

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and/or marked by the reporter, as the Designating Person may direct, or (ii) by

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captioned, written notice to the reporter and all counsel of record, given within ten

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(10) business days after the reporter sends written notice that the transcript is

D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

14589840.2

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[PROPOSED] PROTECTIVE ORDER
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available for review, in which case all counsel receiving such notice shall be

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responsible for marking the copies of the designated transcript, video, or portion

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thereof in their possession or control as directed by the Designating Person.

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B.

Where testimony is designated at a deposition, the Designating Person

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may exclude from the deposition all persons other than those to whom the

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Designated Material may be disclosed under paragraph II of this Order.

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C.

Any party may mark Designated Material as a deposition exhibit and

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examine any witness thereon, provided that the deposition witness is one to whom

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the exhibit may be disclosed under paragraph II of this Order and the exhibit and

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related transcript pages receive the same confidentiality designation as the original

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Material.

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V.

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COURT PROCEDURES
In applications and motions to the Court, all submissions of Designated

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Material marked “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” must be

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made by filing an application to file the Material under seal pursuant to L.R. 79-5.

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Unless otherwise ordered by the Court, any hearing which may refer to or describe

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Designated Material marked “CONFIDENTIAL — ATTORNEYS’ EYES ONLY”

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shall be held only after appropriate steps are taken to ensure that the confidentiality

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of the information is preserved during the hearing.

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VI.

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OBJECTIONS
A party may challenge the designation of any Material produced under this

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Order at any time prior to a trial, dismissal with prejudice or other resolution of this

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proceeding. A challenge may be made by filing and serving on all other parties a

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captioned notice of objection, which shall identify with particularity the items as to

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which the designation is challenged, state the basis for each challenge and propose

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a new designation for each item. If the parties cannot reach an agreement within

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ten (10) days, the challenged Material shall be submitted to the Court, under seal

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when appropriate, for resolution as required by L.R. 37-1, 37-2, 79-5, and any other

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ATTORNEYS AT LAW
LOS ANGELES

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applicable rules. The original designations shall remain effective until ten (10) days

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after entry of an order designating the Materials and during the pendency of any

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writ or petition filed within the ten (10) day period.

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VII. INADVERTENT DISCLOSURE

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A.

To facilitate the discovery process in this matter in light of the large

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volume of documents and electronically-stored information, Material that is subject

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to a claim of attorney/client privilege, work product protection or any other

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applicable privilege by the disclosing party does not lose its protected status

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through disclosure to the Receiving Party, and disclosure of such Material does not

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constitute a waiver of a claim of privilege by the disclosing party. At any time after

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producing Material, the disclosing party may assert the attorney-client privilege,

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work product protection or other privilege relating to that Material or any portion of

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that Material, and the validity of such assertion shall not be affected by the

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disclosure of the Material to the Receiving Party. In addition, Material designated

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“CONFIDENTIAL” or “CONFIDENTIAL — ATTORNEYS’ EYES ONLY” does

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not lose protected status through an unauthorized disclosure, whether intentional or

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inadvertent, by a Receiving Party. If such a disclosure occurs, the parties shall take

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all steps reasonably required to assure the continued confidentiality of the Material.

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B.

If Material is produced in discovery that is subject to a claim of

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privilege or of protection as trial-preparation material, the party making the claim

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may notify any Receiving Party of the claim and the basis for it. After being

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notified, the Receiving Party (1) must promptly return, sequester, or destroy the

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specified Material and any copies it has; (2) may not use or disclose the information

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until the question of its privileged or protected status is determined; (3) provide a

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list including the name, title, and contact information, for every person to whom the

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Receiving Party disclosed the specified Material and any and all information found

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within it; and (4) take reasonable steps to retrieve the specified Material if the

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Receiving Party disclosed it before being notified of the claim of privilege.

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ATTORNEYS AT LAW
LOS ANGELES

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C.

If a Receiving Party challenges the privilege designation, the

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Receiving Party must sequester the Material and a joint stipulation must be filed

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with the Court, pursuant to L.R. 37-1 and 37-2, within ten (10) days, seeking a

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determination of the asserted privilege claim. Any copies of the Materials that are

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the subject of the challenge must be submitted to the Court by filing an application

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to file the Materials under seal. If the Receiving Party challenges the privilege

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designation, it shall not be permitted to use the disclosure of the Material to the

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Receiving Party or any party in this action as a basis for such challenge.

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VIII. NO PREJUDICE

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A.

Nothing in this Order shall preclude any party from seeking and

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obtaining additional or different protection with respect to the confidentiality of any

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document or information produced or disclosed in connection with the above-

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captioned litigation.

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B.

This Order shall not diminish any existing obligation or right with

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respect to Designated Material, nor shall it prevent a disclosure to which the

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Designating Person consents in writing before the disclosure takes place.

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C.

Unless all parties stipulate otherwise, evidence of the existence or

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nonexistence of a designation under this Order shall not be admissible for any

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purpose during any proceeding on the merits of this action.

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D.

A party may seek to make late designations of discovery by stipulation

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or court order if the party failed to make a timely designation through mistake or

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inadvertence.

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IX.

FINAL DISPOSITION

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Upon final termination of the action and at the written request of the

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designating or the producing person, all Designated Material and all copies thereof

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shall be destroyed. However, outside counsel may retain pleadings, attorney and

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consultant work product, depositions, and one copy of each item of Designated

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Material for archival purposes with the Designated Material.

D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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[PROPOSED] PROTECTIVE ORDER
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X.

MODIFICATION AND SURVIVAL

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The restrictions imposed by this Order may only be modified or terminated

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by written stipulation of all parties or by order of this Court. No modification by

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the parties shall have the force or effect of a Court order unless the Court approves

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the modification. This Order shall survive termination of this action. And this

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Court shall maintain jurisdiction to enforce and/or modify this Order.

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XI.

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NO CONTRACT
This stipulation is for the Court’s consideration and approval as an order. It

shall not be construed to create a contract between the parties or between the parties

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and their respective counsel.

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XII. AGREEMENT OF PERSONS TO WHOM MATTER DISCLOSED

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Each qualified person, with the exception of the Court and Court personnel,

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to whom such confidential information is furnished, shown or disclosed shall first

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be provided with a copy of this Stipulated Protective Order, shall execute an

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agreement in the form attached hereto as “Exhibit A” and shall be bound by this

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Stipulated Protective Order. The counsel of record shall maintain the executed

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agreement and a list of each person to whom confidential information is disclosed

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and shall deliver such list to counsel for the party whose confidential information is

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concerned upon written demand. Counsel for each party shall advise those persons

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employed or retained in clerical, stenographic, or other ministerial functions of the

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restrictions provided herein upon dissemination of Designated Material

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information, and shall secure compliance of such persons with the terms of this

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Stipulated Protective Order.

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XIII. THIRD PARTIES

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Any third party producing Materials in this action pursuant to a subpoena

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may produce documents subject to the confidentiality designations of this Order by

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endorsing a copy of the agreement attached as “Exhibit A” and delivering it to the

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Requesting Party who shall retain a copy of the endorsed agreement and, if

D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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requested, shall provide a copy upon counsel for the other parties. Endorsing a

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copy of this agreement, however, does not confer other rights to third parties,

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including access to documents produced subject to this Order.

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So ORDERED, this __9th___day of April, 2013.

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/s/
Honorable Victor B. Kenton
United States Magistrate Judge

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D ECHERT LLP
ATTORNEYS AT LAW
LOS ANGELES

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[PROPOSED] PROTECTIVE ORDER
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Exhibit “A”

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AGREEMENT TO BE BOUND

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BY PROTECTIVE ORDER

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I,

, have read and agreed to

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be bound by the Protective Order in Maren Equipment Leasing, Inc. v. DHL

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Express (USA), Inc., Case No. 2:12-CV-08244-ABC (VBKx), pending in the

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United State District Court, Central District of California.

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Signature

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Typed or Printed Name

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Date

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D ECHERT LLP
ATTORNEYS AT LAW
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Exhibit A
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PROTECTIVE ORDER
CASE NO. 2:12-CV-08244-ABC (VBKX)