Evox Productions LLC v. Gabriels Technology Solutions Inc et al

Filing 46

PROTECTIVE ORDER by Magistrate Judge Ralph Zarefsky re Stipulation for Protective Order 45 . (NOTE: Changes have been made to this proposed order). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EVOX PRODUCTIONS, LLC, a
Delaware limited liability company,
Plaintiff,

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v.
GABRIELS TECHNOLOGY
SOLUTIONS, INC., a New York
corporation, MICHAEL GABRIEL, an
individual, and DOES 1 through 10,
inclusive,
Defendants.

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Case No. CV 13-00846-CJC(RZx)
[PROPOSED] ORDER FOR
ENTRY OF A PROTECTIVE
ORDER GOVERNING
DISCLOSURE AND USE OF
PLAINTIFF’S QUICKBOOKS
FILE
Judge:
Complaint
Filed:
Trial Date:

Hon. Cormac J. Carney
2/6/13
4/15/14

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NOTE: CHANGES HAVE BEEN
MADE TO THIS DOCUMENT

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER
OHSUSA:756630230.2

ORDER

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The Court, having read and considered the Joint Stipulation for Entry of a

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Protective Order filed by the parties, and good cause appearing therefore,

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IT IS HEREBY ORDERED that the terms and conditions of this Protective Order

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are as follows:
DEFINITIONS AND RULES

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1.

As used in this Protective Order, these terms have the following

meanings:

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a.

“Highly Confidential Materials” are Plaintiff’s Quickbooks;

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b.

“Written Assurance” means an executed document in the form

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attached as Exhibit A;

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2.

Plaintiff’s Quickbooks constitute or contain non-public information

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that is entitled to protection under 26(c)(1)(G) of the Federal Rules of Civil

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Procedure and that is extremely sensitive financial information about Plaintiff’s

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customers, vendors, revenue sources from customers and generally a financial

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roadmap to Plaintiff’s business, the disclosure of which to another Party or non-

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party would create a substantial risk of serious injury or competitive harm that

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could not be avoided by less restrictive means. Plaintiff’s Quickbooks will be

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designated and treated as “Highly Confidential- Attorney’s Eyes Only” pursuant to

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this Protective Order.

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3.

All Highly Confidential Material will be used solely for the purpose of

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this action and no person receiving such documents, or information contained in

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such documents may, directly or indirectly, transfer, disclose, or communicate in

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any way the contents of the documents or information therein to any person other

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than those specified in paragraph 4 and 5.

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4.

Access to any Highly Confidential Materials is limited to:
a.

the Court, its officers and jurors;

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

b.

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stenographic and clerical employees;
c.

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Outside counsel and their office associates, legal assistants, and

persons shown on the face of the document to have authored or

received it;

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d.

court reporters retained to transcribe testimony;

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e.

outside independent persons (i.e., persons not currently or

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formerly employed by, consulting with, or otherwise associated with any

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party) who are retained by a party or its attorneys to furnish expert services;
f.

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Up to two representatives of Defendant’s insurance provider

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who are actively involved in the prosecution, defense or appeal of this

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litigation.

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The parties may agree in writing or on the record to permit access to Highly

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Confidential Materials to individuals not otherwise granted access by the terms of

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this Protective Order. The writing or statement on the record must identify the

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particular individual to whom the Highly Confidential Materials will be disclosed

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and specify, by Bates number if possible, the Highly Confidential Materials to be

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disclosed, and will obtain a Written Assurance from each individual prior to

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disclosing the Highly Confidential Materials.

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5.

Each person appropriately designated pursuant to paragraphs 4(e) and

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4(f) must execute, in advance, and as a condition of receiving any Highly

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Confidential Materials, a “Written Assurance” in the form attached as Exhibit A.

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Counsel for the party obtaining the signed agreement must retain a copy of the

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agreement.

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6.

All depositions or portions of depositions taken in this action that

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contain Highly Confidential Material may be designated “Highly Confidential-

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Attorney’s Eyes Only” and obtain the protections accorded the Highly Confidential

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Material. Confidentiality designations for depositions must be made either on the

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

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record or by written notice to the other party within 30 days after the date the

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deposition concludes. Either party may designate a deposition (or any portion of

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such deposition) as “Highly Confidential- Attorney’s Eyes Only” during the

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deposition. The deposition of any witness (or any portion of such deposition) that

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encompasses Highly Confidential Materials will be taken only in the presence of

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persons who are qualified to have access to such information and permitted to

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attend such depositions. A party may request that anyone not authorized to receive

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Highly Confidential Materials, or not permitted to attend depositions or court

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sessions pursuant to the Federal Rules of Evidence, exit the deposition during the

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discussions of any such information, but the failure of any party to request the

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removal of anyone not authorized to receive such information or attend will not

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constitute a waiver of the right to subsequently designate any or all portions of the

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deposition as “Highly Confidential- Attorney’s Eyes Only” in accordance with this

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paragraph. The term “deposition” also applies to any notes, extracts, data or

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information from each deposition made or communicated by attorneys for the

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parties relating to the deposition. Any confidentially designation of the deposition

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(or any portion of such deposition) will only be challenged according to the

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procedure outlined in paragraph 12.

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7.

The inadvertent production by any of the undersigned Parties or non-

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Parties to the action of any Materials during discovery without a “Highly

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Confidential- Attorney’s Eyes Only” designation, will be without prejudice to any

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claim that such item is “Highly Confidential- Attorney’s Eyes Only” and such Party

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will not be held to have waived any rights by such inadvertent production. Any

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party who inadvertently fails to identify documents as “Highly Confidential-

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Attorney’s Eyes Only” must provide written notice of the error and substituted

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copies of the inadvertently produced documents. Any party receiving such

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inadvertently unmarked documents will use its best efforts to retrieve documents

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

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distributed to persons not entitled to receive documents with the corrected

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designation, and to advise the other party of the recipients of the documents prior to

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retrieval. The Party that received the inadvertently produced Materials will

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promptly destroy the inadvertently produced materials and all copies.

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8.

Any party who inadvertently discloses documents that are privileged

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or otherwise immune from discovery will, promptly upon discovery of such

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inadvertent disclosure, so advise the Receiving Party and request that the

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documents be returned or destroyed. The Receiving Party will return or destroy

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such inadvertently produced documents, including all copies, within 14 days of

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receiving such a written request.
9.

With respect to Court filing or use at trial or on appeal of Highly

Confidential Materials:
a.

If a party files a document containing Highly Confidential

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Materials with the Court, it will do so in compliance with the Electronic Case

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Filing Procedures for the Central District of California.

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b.

Before or at the time any Highly Confidential Materials are filed

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with the Court for any purpose, the party seeking to file the Highly

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Confidential Material will seek permission of the Court by appropriate

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motion to file the material under seal. The Court permitting, until permission

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is granted, the party seeking permission will file the material provisionally

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under seal, so marked, unless the producing party agrees otherwise. The

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parties agree to and will follow and abide by applicable law, including Local

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Civil Rule 79-5, with respect to filing documents under seal in this Court.

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c.

Any documents approved by the Court for filing under seal will

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be so designated in a cover sheet, captioned “Filed” or “Provisionally Filed”

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as the case may be followed by “Under Seal Pursuant to Protective Order by

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Order of Court,” and each page will carry a stamp with the same designation.

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

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The Order of Permission to File Under Seal may request or direct the Clerk

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of Court to maintain such documents under seal, unavailable to anyone but

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Outside Counsel of record for the parties. Prior to disclosure at trial or a

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hearing of Highly Confidential Materials the parties may seek from the Court

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further protections against public disclosure as the parties may deem

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necessary.

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10.

In the event that counsel for a Party receiving Highly Confidential

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Materials designated as “Highly Confidential- Attorney’s Eyes Only” objects to

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such designation with respect to any or all of such items, said counsel will advise

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counsel for the designating Party, in writing, of such objections, the specific

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Materials to which each objection pertains, and the specific reasons and support for

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such objections (the “Designation Objections”). Counsel for the designating Party

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will have 14 calendar days from receipt of the written Designation Objections to

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either (a) agree in writing to de-designate Materials pursuant to all or any of the

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Designation Objections; or (b) send the objecting party a meet-and-confer letter

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pursuant to Local Civil Rule 37 disputing all or any of the Designation Objections.

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If the designating Party does not agree to de-designate the Materials in the

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Designation Objections the parties must fully comply with Local Rule 37 and

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present the dispute to the Court in accordance with Local Rule 37 (the “Designation

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Motion”). Pending a resolution of the Designation Motion by the Court, any and all

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existing designations on the documents, testimony or information at issue in the

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Designation Motion will remain in place. The designating Party will have the

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burden of proving that the information in question is within the scope of protection

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afforded by Fed. R. Civ. P. 26(c).

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11.

Within 30 days of the termination of this action, including any appeals,

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each party will, at the election of the producing party, either destroy or return to the

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producing party all documents designated by the producing party as “Highly

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

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Confidential- Attorney’s Eyes Only” and all copies of such documents, and will

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destroy all copies, abstracts, compilations, or summaries of the Highly Confidential

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Materials. Each party will provide a certification as to such return or destruction as

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having been completed within the 30-day period. Notwithstanding this provision,

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attorneys are entitled to retain under seal appropriately designated in the caption as

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“Retained Under Seal Pursuant to Protective Order” an archival copy of all

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pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney

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work product, even if such materials contain Highly Confidential Materials. Such

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retained documents may be unsealed only by appropriate order of Court, or by

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permission in writing of the producing party.
12.

Any party may apply to the Court for a modification of this Protective

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Order, and nothing in this Protective Order will be construed to prevent a party

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from seeking such further provisions enhancing or limiting confidentiality as may

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be appropriate. This Protective Order does not alter, waive, modify, or abridge any

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right, privilege or protection otherwise available to any Party with respect to the

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discovery of matters, including but not limited to any Party’s right to assert the

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attorney-client privilege, the attorney work product doctrine, or other privileges, or

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any Party’s right to contest any such assertion.

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13.

No action taken in accordance with this Protective Order will be

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construed as a waiver of any claim or defense in the action or of any position as to

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discoverability or admissibility of evidence. Nor by its agreement or stipulation to

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entry of the attached Protective Order does any party make any admission that

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Highly Confidential Materials that may be designated by any party as “Highly

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Confidential- Attorney’s Eyes Only” are, in fact, confidential. All parties reserve

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their right to challenge another party’s designation of Materials as confidential

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pursuant to paragraph 12 of this Stipulation.

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

14.

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The obligations imposed by this Protective Order will survive the

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termination of this action. Within 60 days following the expiration of the last

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period for appeal from any order issued in connection with this action, the parties

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may remove any Highly Confidential Materials from the office of the Clerk of

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Court.

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15.

This Order may be modified by agreement of the parties, subject to

approval by the Court.

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This Order shall not govern in connection with dispositive motions or at trial.

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Different standards and considerations attend those proceedings. Foltz v.

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State Farm Mutual Auto Insurance Co., 331 F.3d 1122, 1136 (9th Cir. 2003);

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Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). If

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any party desires protection in connection with those proceedings, the party

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shall make separate application to the judicial officer presiding at those

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proceedings.

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Dated: February March 3,2014
By:

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RALPH ZAREFSKY
United States District Magistrate

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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
PROTECTIVE ORDER

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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EVOX PRODUCTIONS, LLC, a
Delaware limited liability company,

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Plaintiff,
v.

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GABRIELS TECHNOLOGY
SOLUTIONS, INC., a New York
corporation, MICHAEL GABRIELS,
an individual, and DOES 1 through
10, inclusive,

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Defendants.

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Case No. CV 13-00846-CJC(RZx)
WRITTEN ASSURANCE
REGARDING PROTECTIVE
ORDER
Hon. Cormac J. Carney

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I, ___________________________, declare that:
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1.

I reside at ________________________________________ in the city

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of __________________________, county _______________________, state of
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________________________.
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2.

I am currently employed by ____________________________ located

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at _____________________________________ and my current job title is
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__________________________.
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3.

I have read and believe I understand the terms of the Protective Order

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dated ___________, filed in Civil Action No. CV 13-00846-CJC(RZx), pending in
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the United States District Court for the Central District of California. I agree to
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comply with and be bound by the provisions of the Protective Order. I understand
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CV 13-00846-CJC(RZX)
[PROPOSED] ORDER FOR ENTRY OF A
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that any violation of the Protective Order may subject me to sanctions by the Court.
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I will not divulge any documents, or copies of documents, designated

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“Highly Confidential- Attorney’s Eyes Only” obtained pursuant to such Protective

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Order, or the contents of such documents, to any person other than those

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specifically authorized by the Protective Order.

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documents except for the purposes of this action and pursuant to the terms of the

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Protective Order.

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5.

I will not copy or use such

As soon as practical, but no later than 30 days after final termination of

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this action, I will return to the attorney from whom I have received them any

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documents in my possession designated “Highly Confidential- Attorney’s Eyes

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Only” and all copies, excerpts, summaries, notes, digests, abstracts, and indices

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relating to such documents.

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6.

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

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for the Central District of California for the purpose of enforcing or otherwise

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providing relief relating to the Protective Order, but not for the purpose of

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conferring jurisdiction over the party engaging me, or for whom I am employed, in

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any jurisdiction other than the Central District of California.

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed on _______________

________________________________

(Date)

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(Signature)

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PROTECTIVE ORDER