Tracie D Agostino v. Jesta Digital LLC et al

Filing 50

**NOTE: CHANGES MADE BY THE COURT** STIPULATED PROTECTIVE ORDER FOR THE HANDLING OF CONFIDENTIAL DOCUMENTS AND INFORMATION 48 by Magistrate Judge Paul L. Abrams. **See attached Order.** (es)

NOTE: CHANGES MADE BY THE COURT
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David G. Bayles (SBN 208112)
Arent Fox LLP
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013-1065
Telephone: [phone]
Facsimile: 213-629-7401
E-mail:
[e-mail]
Attorneys for Defendant Jesta Digital, LLC
MILBERG LLP
NICOLE M. DUCKETT (SBN 198168)
[e-mail]
One California Plaza
300 Grand South Avenue Suite 3900
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
WESTERMAN LAW CORP.
JEFF S. WESTERMAN (SBN 94559)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Telephone: [phone]
Attorneys for Plaintiff Tracie D’Agostino

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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TRACIE D’AGOSTINO, individually
and on behalf of all others similarly
situated;
Plaintiff;

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vs.
JESTA DIGITAL, LLC d/b/a
JAMSTER, et al.;

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Case No. CV 12-9712-JFW (PLAx)
Judge: Hon. John F. Walter
Magistrate Judge: Paul L. Abrams
STIPULATED PROTECTIVE
ORDER FOR THE HANDLING OF
CONFIDENTIAL DOCUMENTS
AND INFORMATION
Trial Date: None Set

Defendants.

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RPP/596241.1

PROTECTIVE ORDER; HANDLING OF
CONFIDENTIAL DOCS & INFORMATION
CV 12-9712-JFW (PLAX)

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Plaintiff Tracie D’Agostino (“Plaintiff”) and Defendant Jesta Digital, LLC

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(“Defendant”) (each in the singular, “Party”; collectively, the “Parties”), having

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sought this Court’s approval for the entry of this Stipulated Protective Order For the

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Handling of Confidential Documents and Information pursuant to Federal Rule of

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Civil Procedure 26(c) (hereafter, the “Order”), and the Parties having made the

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following statement of good cause:

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GOOD CAUSE STATEMENT

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The prosecution and defense of this action may require the discovery or

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disclosure of documents, information or other material claimed by one or more of

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the Parties or third parties to be non-public personal financial or other confidential

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information, or involve trade secrets and other valuable research, development,

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commercial, financial, technical and/or proprietary information for which special

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

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prosecution or defense of this action is warranted. Such confidential and proprietary

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materials and information consist of, among other things, confidential business or

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financial information, information regarding confidential business practices, or

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other confidential research, development, or commercial information (including

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information implicating the privacy rights of third parties), information otherwise

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generally unavailable to the public, or which maybe privileged or otherwise

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protected from disclosure under state or federal statutes, court rules, case decisions,

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or common law. Accordingly, to expedite the flow of information, to facilitate the

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prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonably necessary uses of such materials in

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preparation for and in the conduct of this case, to address their handling at the end

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of the litigation, and serve the ends of justice, a protective order for such

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information is useful and justified in this matter.

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In entering this Protective Order, it is the intent of the Parties and the Court

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that information will not be designated as confidential for tactical reasons in this

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case and that nothing be so designated without a good faith belief that there is good

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cause why it should not be part of the public record of this case. Further, the scope

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and effect of the Protective Order is governed by the Local Rules and the Court’s

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Standing Order and procedures.
Accordingly, the Protective Order should thus be entered for good cause

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shown and is hereby entered on the following terms:
TERMS OF PROTECTIVE ORDER

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This Protective Order is intended to protect from disclosure documents and

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information the parties deem to be confidential in accordance with applicable law

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and rules. Documents and information so designated may only be disclosed or used

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as further provided herein. Pursuant to Rule 26(c) of the Federal Rules of Civil

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Procedure, it is hereby stipulated by and among the Parties to this Action, through

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their respective counsel and subject to the approval of this Court, as follows:

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I.

DEFINITIONS
1)

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“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION”

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shall mean information, recorded, stored, or maintained for any reason in any

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medium, including but not limited to print, electronic, or digital, that the party

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designating the information as “Confidential” that the producing party believes in

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good faith to be entitled to protection under Rule 26(c)(1)(G) of the Federal Rules

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of Civil Procedure.

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2)

HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY shall mean

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information that is CONFIDENTIAL or CONFIDENTIAL INFORMATION, but

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that the designating party reasonably believes to be extremely sensitive, the

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disclosure of which to another Party or non-party would create a substantial risk of

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serious injury or competitive harm (to the producing party and/or the persons whose

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highly confidential information is contained in such documents), including
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technological trade secrets, customer lists, and other highly sensitive, proprietary

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information for which the receiving Party’s access is not reasonably likely to aid

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counsel’s prosecution of the action and the disclosure of which could lead to serious

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injury or competitive harm to the producing party.
3)

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“DOCUMENT(S).” This term is a collective reference to any and all

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material or other tangible things containing information produced by any party in

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the Action or third party in connection with the Action, including written responses

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to discovery and deposition testimony. Without limitation, DOCUMENT(S) further

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include(s) any medium by which information is recorded, stored, communicated, or

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utilized, including papers (of any kind, type, or character) and any method or

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medium by which information may be communicated, recorded, or retrieved by

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people or by computers. The word DOCUMENT(S), includes, without limitation,

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photographs, x-rays, motion pictures, audio tapes, videotape recordings, computer

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generated material, computer disks, and any other form or type of computer stored

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or computer retrievable data, microfilm and microfiche, or any other process by

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which information is reduced for storage, and duplicates and reproductions of the

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same by any method.
4)

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“COURT.” This term refers to the Honorable John F. Walter, so long

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as Judge Walter retains jurisdiction of this Action, and/or his duly assigned

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successor (if any), and any Magistrate Judge or Special Master designated to hear

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and decide disputes arising under the Order.

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II.

PROCEDURE FOR DETERMINING STATUS OF CONFIDENTIAL

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DOCUMENTS.

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1)

The Order shall govern and apply to all information designated as

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CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL-

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ATTORNEYS EYES ONLY DOCUMENTS, which may include, documents

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produced in connection with this action, interrogatory answers, responses to

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requests for admission, depositions and deposition exhibits, pleadings, and any
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other information produced or obtained pursuant to a formal discovery request or

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subpoena, a request made at deposition or any other formal or informal means. It

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may also apply to information designated as confidential by a producing party that

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produces by informal means.

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2)

All DOCUMENTS or categories of DOCUMENTS or pages of

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DOCUMENTS produced or disclosed that the producing party in good faith

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believes to contain information that should be subject to the Order shall be

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designated by the producing party as follows:

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“CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER”

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Or

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“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY”

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To the extent such designation is placed on a CD or disk, both the CD/disk and any

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documents or information contained therein shall be subject to the

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CONFIDENTIAL or HIGHLY CONFIDENTIAL designation, provided, however,

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that to the extent reasonably possible, the producing party must make efforts to

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mark each document with the appropriate designation so as to minimize the

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potential for confusion. To the extent electronic DOCUMENTS are being produced

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in native format and deemed CONFIDENTIAL or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY, appropriate designation of a disk containing such

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information shall be sufficient for purposes of affording protections to the

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DOCUMENT under this protective order.

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3)

The designation of a DOCUMENT or information as

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CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL-ATTORNEYS

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EYES ONLY shall not create any presumption with regard to the actual

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confidentiality of any DOCUMENT, nor shall it affect the burden of proof

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necessary for obtaining a Rule 26(c) protective order from the Court. The party

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designating information, DOCUMENTS, deposition testimony, discovery

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responses, materials, pleadings, or other items as “Confidential” or ‘Highly
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Confidential” bears the burden of establishing their confidentiality if challenged by

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any other party.

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4)

If counsel for a party receiving DOCUMENTS designated as

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Confidential or Highly Confidential objects to such designation of any or all of

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such items, the following procedure shall apply:
a.

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Counsel for the objecting party shall serve on the designating

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party a written objection to such designation, with a copy being sent via email to all

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counsel of record, which shall describe with particularity the DOCUMENTS or

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information in question, and shall state the factual and legal grounds for the

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objection.
b.

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Counsel for the designating party or third party shall respond in

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writing to such objection within fourteen calendar days, unless a shorter time frame

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is agreed upon by the Parties or ordered by the Court, and shall state with

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particularity the factual and legal grounds for asserting that the DOCUMENT or

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information is Confidential or Highly Confidential. If no timely written response is

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made to the objection, the challenged designation will be deemed no longer

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applicable and not subject to the terms of the Order.
c.

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If the designating party makes a timely response to such

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objection asserting the propriety of the designation, then that response shall be

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prepared to be the designating party’s portion of the joint submission for presenting

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the dispute to the Court in accordance with Central District Local Civil Rule 37-1 et

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seq. governing discovery motions. The DOCUMENT or information that is the

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subject of the filing shall be treated as originally designated pending resolution of

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the dispute. All requirements of Local Rule 37 must be followed, including the

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meet and confer procedure.

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III.

With regard to CONFIDENTIAL INFORMATION or HIGHLY

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ORDERS REGARDING CONFIDENTIAL INFORMATION.

CONFIDENTIAL, the foregoing provisions shall be in effect:
1)

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All CONFIDENTIAL INFORMATION or HIGHLY

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CONFIDENTIAL documents shall be used by the receiving party solely for

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purposes of the prosecution or defense of this Action, shall not be used by the

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receiving party for any business, commercial, competitive, personal or other

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purpose. CONFIDENTIAL INFORMATION shall not be disclosed by the

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receiving party to anyone other than those set forth in Paragraph III(2) below, and

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HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY shall not be disclosed

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by the receiving party to anyone other than those set forth in Paragraph III(3) unless

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and until the restrictions herein are removed either by the operation of this Order,

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the written agreement of the designating party or non-party, or by order of the

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Court.

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2)

Except as otherwise provided herein, CONFIDENTIAL

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INFORMATION may be disclosed, summarized, described, characterized, or

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otherwise communicated or made available in whole or in part only to the following

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individuals under the following conditions:
a.

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Counsel for the Parties, including in-house counsel, and regular

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and temporary employees and independent contractors of such counsel assisting in

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the conduct of this Action;

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b.

Experts and consultants (and their counsel) retained by the

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Parties or their counsel in connection with the prosecution or defense of this Action

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and their regular and temporary employees assisting in matters related to this

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Action;
c.

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Plaintiff and the Defendant (including Defendant’s directors,

officers, trustees, employees and agents assisting in the conduct of the Action or to
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whom disclosure is deemed necessary by disclosing counsel);
d.

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Witnesses or deponents, and their counsel, to the extent

necessary, in preparation for, or during the course of, testimony in this Action;

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e.

The Court and Court personnel;

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f.

Any mediator agreed to by the Parties, and the mediator’s staff;

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g.

Vendors retained by or for the Parties to assist in preparing for

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pretrial discovery, trial and/or hearings including, but not limited to, court reporters,

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litigation support personnel, jury consultants, individuals to prepare demonstrative

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and audiovisual aids for use in the courtroom or in depositions or mock jury

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sessions, as well as their staff, stenographic, clerical employees whose duties and

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responsibilities require access to such materials and mock jurors;
h.

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Any person who is indicated on the face of a DOCUMENT to

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have been an author, addressee or recipient thereof or who counsel have a good

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faith belief did author or receive the document; and
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Any other person upon order of the Court, after notice and a

hearing, or upon written consent of the designating party or non-party.
3)

Except as otherwise provided herein, HIGHLY CONFIDENTIAL -

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ATTORNEY EYES ONLY information may be disclosed, summarized, described,

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characterized, or otherwise communicated or made available in whole or in part

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only to the following individuals under the following conditions:
a.

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Outside or in-house counsel of record for the Parties, including

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regular employees of such counsel assisting in the conduct of

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this Action;
b.

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Experts and consultants retained by the Parties or their counsel

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in connection with the prosecution or defense of this Action and

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their regular employees assisting in matters related to this

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Action;
c.

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RPP/596241.1

The Court and Court personnel;
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d.

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Any other person upon order of the Court, after notice and a

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hearing, or upon written consent of the designating party or non-

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party.
e.

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Any mediator agreed upon by the Parties and the mediator’s
staff; and

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f.

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Any person who is indicated on the face of a DOCUMENT to

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have been an author, addressee or recipient thereof, or who

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counsel have a good faith belief did author or receive the
document.

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4)

Except for the Court and Court personnel, every person in

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paragraph III(2) given access to CONFIDENTIAL INFORMATION, or any

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persons in paragraph III(3) given access to HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY information shall be advised that such material or

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information is being disclosed pursuant to the terms of the Order and that such

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material may not be used or disclosed except as permitted herein, and that failure to

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abide by the terms hereof may be punished as a contempt of court. In addition, all

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persons, other than those listed in paragraphs 2(a), (c), (e) and (f) and paragraphs

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3(a) and (c) above, who are given access to CONFIDENTIAL INFORMATION or

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HIGHLY CONFIDENTIAL— ATTORNEY’S EYES ONLY documents also must

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confirm their understanding by signing a copy of Exhibit A attached to the Order,

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provided that non-party witnesses (and their counsel) to whom CONFIDENTIAL

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INFORMATION or HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY

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documents are disclosed at a deposition will not be permitted to retain confidential

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documents unless they sign a copy of Exhibit A or confirm their understanding and

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agreement to abide by the terms hereof on the record of such deposition. Counsel

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for the party obtaining the signed agreement shall retain a copy of the agreement.

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5)

CONFIDENTIAL INFORMATION and HIGHLY

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CONFIDENTIAL—ATTORNEY’S EYES ONLY documents shall be used only by

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individuals permitted access to it under Paragraphs III(2) and III(3) respectively.

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CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY information, copies thereof, and the information

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contained therein, shall not be disclosed in any manner to any other individual, until

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and unless (a) outside counsel for the party or non-party asserting confidentiality

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waives the claim of confidentiality, or (b) the Court orders such disclosure.

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6)

With respect to any depositions that involve a disclosure of

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CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY information, the designating party shall have until

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thirty (30) days after receipt of the deposition transcript within which to inform all

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other Parties in writing that portions of the transcript are to be designated

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Confidential, which period may be modified by agreement of the Parties or by order

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of the Court. No such deposition transcript shall be disclosed to any individual

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other than the individuals described in Paragraph III(2) or III(3) above and the

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deponent during this period of time (although it may be filed under seal as

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permitted under this Order), and no individual attending such a deposition shall

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disclose the contents of the deposition to any individual other than those described

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in Paragraph III(2) or III(3) above during that period of time. Upon being informed

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that certain portions of a deposition are to be designated as Confidential or Highly

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Confidential, all Parties shall immediately cause each copy of the transcript in its

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custody or control to be appropriately marked and limit disclosure of that transcript

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in accordance with the provisions of the Order.

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7)

Any party who has received CONFIDENTIAL INFORMATION and

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HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY information shall act

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to preserve the confidentiality of designated DOCUMENTS. Any DOCUMENT
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that contains CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY information, including, without limitation, any

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deposition transcript, deposition exhibit, pleading, motion, memorandum,

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deposition notice, interrogatory, request for document production, subpoena, or

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response to an interrogatory or request for production, or that reproduces,

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paraphrases, summarizes, or encloses CONFIDENTIAL or HIGHLY

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CONFIDENTIAL—ATTORNEY’S EYES ONLY information, if filed with the

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Court, must be filed in accordance with the provisions set forth in paragraph III(8).

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8)

Unless expressly authorized by statute or federal rule, or the Judicial

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Conference of the United States, “CONFIDENTIAL INFORMATION” or

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“HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY” that will be filed

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with the Court cannot be filed under seal without prior approval by the Court

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pursuant to the procedures outlined in the Standing Orders of the District Judge to

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whom this case is assigned and the applicable Central District Local Rules. If a

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court denies a request to file Confidential materials under seal, they may thereafter

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be filed under seal.

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9)

All Court orders will be presumptively available to the public.

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Therefore, if the Court orders certain documents be filed under seal pursuant to the

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provisions of paragraph III(8) above, all papers filed by the parties that refer to or

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rely upon such evidence shall designate the particular aspects that are Confidential.

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This will enable the Court, in drafting orders, to know which evidence the parties

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wish the Court not to disclose.

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10)

This Order shall apply to non-parties who are obliged to provide

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discovery, by deposition, production of documents or otherwise, in this Action if

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said non-party requests in writing the protection of the Order as to said non-party’s

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CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL-

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ATTORNEY’S EYES ONLY information, complies with the provisions of the

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Order, and agrees in writing to be bound by its terms by executing Exhibit A
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hereto.
11)

In the event any party to this Action shall receive a subpoena, civil

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investigative demand, or other form of legal process from any non-party (including

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any party to any action other than this Action, or any federal or state regulatory or

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administrative body or agency), such party shall immediately disclose such fact to

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the producing and/or designating party or non-party, unless precluded from doing

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so by law or court order, and shall not disclose any CONFIDENTIAL

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INFORMATION or HIGHLY CONFIDENTIAL-ATTORNEY’S EYES ONLY

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information in response thereto prior to the due date. If possible, notice shall be

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given at least ten days before the return of any subpoena, civil investigative

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demand, or other form of legal process. Nothing herein shall prevent timely

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compliance with a request mentioned in the first sentence of this paragraph.

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13)

To the extent consistent with applicable law, the inadvertent or

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unintentional disclosure of CONFIDENTIAL INFORMATION or HIGHLY

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CONFIDENTIAL—ATTORNEY’S EYES ONLY that should have been

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designated as such, regardless of whether the information, DOCUMENT or thing

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was so designated at the time of disclosure, shall not be deemed a waiver in whole

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or in part of a party’s claim of confidentiality, either as to the specific information,

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DOCUMENT or thing disclosed or as to any other material or information

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concerning the same or related subject matter. Such inadvertent or unintentional

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disclosure may be rectified by notifying in writing counsel for all Parties to whom

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the material was disclosed that the material should have been designated

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Confidential within a reasonable time after disclosure. Such notice shall constitute a

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designation of the information, document or thing as Confidential under this Order.

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All Parties shall reserve the right to challenge such a designation pursuant to the

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provisions of the Order.

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14)

No information that is in the public domain or which is already known

by the receiving party through proper means or which is or becomes available to a
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party from a source other than the party asserting confidentiality, rightfully in

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possession of such information on a non-confidential basis, shall be deemed or

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considered to be Confidential under the Order.

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15)

a.

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asserting that certain information is highly confidential and/or

trade secret so as not to be subject to discovery;
b.

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Nothing in this Order shall prevent any party or non-party from:

resisting or object to the production of documents or disclosure

of information on any other grounds;
c.

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consenting to another party’s or non-party’s basis for

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designating discovery as CONFIDENTIAL INFORMATION or HIGHLY

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CONFIDENTIAL— ATTORNEY’S EYES ONLY ;
d.

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seeking additional protective relief with respect to any

DOCUMENT or information sought in the course of discovery;
e.

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objecting to the admissibility, authenticity, or use of any

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DOCUMENT or CONFIDENTIAL INFORMATION or HIGHLY

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CONFIDENTIAL—ATTORNEY’S EYES ONLY at any hearing or trial;

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f.

seeking to compel additional discovery;

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g.

agreeing to modify, alter, amend or waive the provision or

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protections provided herein;

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h.

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seeking modification or other relief from the Court with respect

to any or all of the provisions of the Order, or;
i.

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using his, her, or its own DOCUMENTS, CONFIDENTIAL

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INFORMATION or HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY

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for any purpose whatsoever, provided that if they are used in a non confidential

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manner, the designating party will promptly remove the designation.

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16)

In the event additional parties are joined or permitted to intervene in

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this Action, they shall not have access to any CONFIDENTIAL INFORMATION

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or HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY unless and until
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such parties (and their counsel) agree in writing to be bound by the terms of the

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Order by executing a copy of Exhibit A hereto.
17)

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Nothing contained in this Protective Order shall be construed to

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require the production or disclosure of any CONFIDENTIAL INFORMATION or

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HIGHLY CONFIDENTIAL—ATTORNEY’S EYES ONLY deemed by counsel

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for the party possessing such material to be protected from disclosure by the

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attorney-client privilege or the attorney work product doctrine. There is no waiver

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of the attorney-client privilege or the attorney work-product doctrine should

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DOCUMENT(s) or thing(s) containing such material be inadvertently produced

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which the producing party in good faith asserts are covered by the attorney-client

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privilege or the attorney work- product immunity. Upon prompt notice by a

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producing party and upon a showing of privilege or protection, together with a

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showing of inadvertent production, the receiving party shall immediately return the

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originals and all copies of the privileged or immune DOCUMENT(s) or thing(s).

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IV.

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GENERAL PROVISIONS
1)

The Order shall survive the termination of this Action and shall remain

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in full force and effect unless modified by an order of the Court or by the written

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stipulation of the Parties filed with the Court.

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2)

Within forty-five (45) days after entry of a final non-appealable order,

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judgment, or settlement with respect to the claims in this Action and upon the

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written request of the producing party, each party or other individual subject to the

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terms hereof shall, absent a court order or agreement to the contrary, either return

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DOCUMENTS or other material subject to the Order to the producing party or non-

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party at the producing party or non-party’s expense or, alternatively and upon

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written consent of the producing party shall destroy all such materials and certify in

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writing that such materials have been destroyed. The certification shall confirm that

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counsel have destroyed all DOCUMENTS within their possession, as well as

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DOCUMENTS that have been provided to others in accordance with the Order.
RPP/596241.1

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PROTECTIVE ORDER; HANDLING OF
CONFIDENTIAL DOCS & INFORMATION
CV 12-9712-JFW (PLAX)

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Notwithstanding the foregoing, counsel (including in-house counsel) for the Parties

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shall be entitled to retain for their files one set of all pleadings, motion papers, court

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filings, discovery requests, expert reports, deposition, hearing and trial transcripts

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(including exhibits) and attorney work-product (including legal research) which

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incorporate, contain, or refer to any DOCUMENTS or other material that contain or

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refer to CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY, provided that such materials remain subject to the

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terms and conditions of the Order.

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3)

Neither the termination of this Action or any related proceedings nor

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the termination of employment of any person who has had access to any

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CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL—

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ATTORNEY’S EYES ONLY shall relieve such person of his or her obligations

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under the Order.

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IT IS SO ORDERED.

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Dated: May 9, 2013

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Hon. Paul L. Abrams
United States Magistrate Judge

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RPP/596241.1

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PROTECTIVE ORDER; HANDLING OF
CONFIDENTIAL DOCS & INFORMATION
CV 12-9712-JFW (PLAX)