VBConversions LLC v. VM Innovations Inc et al

Filing 34

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 26 (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 VBCONVERSIONS, LLC, a California 12 limited liability company, 13 14 15 Plaintiff, CASE NO. CV13-00852-GAF-MAN PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES’ STIPULATION vs. 16 VM INNOVATIONS, INC., a Nebraska corporation; LAPKOSOFT, a Nebraska 17 business entity; VITALI LAPKO, an 18 individual; JEFF RAPP, an individual; DOES 1-10, INCLUSIVE, 19 Defendant. 20 21 22 23 24 INTRODUCTION Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on 25 the parties’ Stipulated Protective Order; and [Proposed] Order (“Stipulation”) filed 26 on July 30, 2013, the terms of the protective order to which the parties have agreed 27 are adopted as a protective order of this Court (which generally shall govern the 28 pretrial phase of this action) except to the extent, as set forth below, that those terms 1 have been substantively modified by the Court’s amendment of paragraphs 7, 8, 10, 2 12, 13, and 14 of, and Exhibit A to, the Stipulation. 3 The parties are expressly cautioned that the designation of any information, 4 document, or thing as CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES 5 ONLY, or other designation(s) used by the parties, does not, in and of itself, create 6 any entitlement to file such information, document, or thing, in whole or in part, 7 under seal. Accordingly, reference to this Protective Order or to the parties’ 8 designation of any information, document, or thing as CONFIDENTIAL, 9 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, or other designation(s) used by 10 the parties, is wholly insufficient to warrant a filing under seal. 11 There is a strong presumption that the public has a right of access to judicial 12 proceedings and records in civil cases. In connection with non-dispositive motions, 13 good cause must be shown to support a filing under seal. The parties’ mere 14 designation of any information, document, or thing as CONFIDENTIAL, 15 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, or other designation(s) used by 16 parties, does not -- without the submission of competent evidence, in the form of 17 a declaration or declarations, establishing that the material sought to be filed 18 under seal qualifies as confidential, privileged, or otherwise protectable -19 constitute good cause. 20 Further, if sealing is requested in connection with a dispositive motion or 21 trial, then compelling reasons, as opposed to good cause, for the sealing must be 22 shown, and the relief sought shall be narrowly tailored to serve the specific interest 23 to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th 24 Cir. 2010). For each item or type of information, document, or thing sought to be 25 filed or introduced under seal in connection with a dispositive motion or trial, the 26 party seeking protection must articulate compelling reasons, supported by specific 27 facts and legal justification, for the requested sealing order. Again, competent 28 evidence supporting the application to file documents under seal must be 2 1 provided by declaration. 2 Any document that is not confidential, privileged, or otherwise protectable in 3 its entirety will not be filed under seal if the confidential portions can be redacted. 4 If documents can be redacted, then a redacted version for public viewing, omitting 5 only the confidential, privileged, or otherwise protectable portions of the document, 6 shall be filed. Any application that seeks to file documents under seal in their 7 entirety should include an explanation of why redaction is not feasible. 8 Notwithstanding any other provision of this Protective Order, in the event that 9 this case proceeds to trial, all information, documents, and things discussed or 10 introduced into evidence at trial will become public and available to all members of 11 the public, including the press, unless sufficient cause is shown in advance of trial to 12 proceed otherwise. 13 THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND 14 ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE 15 HONORABLE GARY A. FEESS, UNITED STATES DISTRICT JUDGE, 16 INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS AND 17 FILINGS UNDER SEAL. 18 TERMS OF PROTECTIVE ORDER 19 20 1. The Parties have stipulated and consented that the terms and 21 conditions of this Stipulated Protective Order (“Protective Order”) shall govern the 22 handling of documents and information produced by the Parties to preserve the 23 confidentiality of the information that has been or will be requested and produced in 24 discovery in this action, whether informally or in response to a written interrogatory, 25 document production request, or at a deposition. The Parties agree that a protective 26 order is necessary to protect the integrity of this information, the rights of each of 27 the Parties, and the rights of certain third parties. 28 2. For the purposes of this Protective Order, the term “DOCUMENTS” 3 1 means all written, recorded, computerized, electronic, or graphical material or 2 information and things, whether produced or created by a Party or another person, 3 and whether produced in response to a discovery request, subpoena, agreement, or 4 otherwise. 5 3. For the purposes of this Protective Order, the term “DISCOVERY 6 MATERIALS” means all written interrogatory responses, responses to requests for 7 admission, all deposition testimony, and any items marked at any deposition. 8 4. The Parties to this action have the right to designate as 9 “CONFIDENTIAL” OR “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” any 10 DOCUMENTS and DISCOVERY MATERIALS in this action which either Party 11 believes in good faith contains nonpublic and sensitive personal information of 12 individual persons, trade secrets, confidential research, developments, commercial 13 financial information, and/or any other proprietary, confidential, or competitively 14 sensitive business information. By having entered into this Protective Order 15 providing for the designation of DOCUMENTS and other DISCOVERY 16 MATERIALS as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ 17 EYES ONLY,” no party is admitting that the contents of any such DOCUMENTS 18 or other DISCOVERY MATERIALS are, in fact, confidential. No party receiving 19 DOCUMENTS or DISCOVERY MATERIALS designated “CONFIDENTIAL” or 20 “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” however, has the unilateral 21 right to disregard such a designation. Rather, the procedures set forth herein must 22 be followed to challenge such a designation 23 4. Unless agreed to in writing by the respective counsel or otherwise 24 ordered by the Court, any DOCUMENTS or DISCOVERY MATERIALS 25 designated “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES 26 ONLY,” and all information derived therefrom, shall be used only in connection 27 with and/or in preparation for the trial of this action, VBCONVERSIONS, LLC v. VM 28 INNOVATIONS, INC., et al., United States District Court Case No. CV 13-00852 4 1 GAF (MANx) (this “ACTION”), and shall not be used for any other purpose 2 whatsoever, and shall not be used or disclosed in any cases designated as “related” 3 cases under state or federal law. 4 5. By producing the DOCUMENTS or DISCOVERY MATERIALS 5 designated “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES 6 ONLY,” producing Parties do not waive any objection to the admissibility, 7 relevance, or any other ground for objection to the DOCUMENTS or DISCOVERY 8 MATERIALS, all of which grounds are specifically reserved. 9 6. DOCUMENTS or DISCOVERY MATERIALS designated 10 “CONFIDENTIAL” and any copies, summaries, extracts, notes, or memoranda 11 relating thereto may be disclosed by counsel of record for the Parties to this 12 ACTION only to the following: a. 13 The Parties, their officers, employees, and agents who are working on this specific case; 14 b. 15 Counsel of record for the Parties, counsel’s employees, and/or agents who are working on this specific case; 16 c. 17 Consultants and experts employed by counsel of record for the 18 purpose of assisting in the preparation for and/or trial of this 19 specific case but only to the extent such persons need such 20 confidential information for that preparation; 21 d. The Court and its personnel; 22 e. Employees of outside copy services used to make copies of CONFIDENTIAL documents; 23 24 f. The jury selected for trial in this matter (if any); and, 25 g. Any other person under such terms as may be agreed by the Parties in writing or as the Court may hereafter order. 26 27 7. Each person, other than those identified in Paragraphs 6(a), 6(b), 28 6(d), and 6(f), to whom information designated as CONFIDENTIAL is disclosed 5 1 shall be informed of the terms of this Protective Order and agree to be bound by it 2 before disclosure to such persons of any such information. The persons described in 3 Paragraphs 6(c), 6(e), and 6(g) shall not have access to either CONFIDENTIAL 4 information, as the case may be, until they have certified that they have read this 5 Protective Order and have manifested their assent to be bound thereby by signing a 6 copy of the Assurance of Compliance attached hereto as Exhibit A. Once a person 7 has executed such an Assurance of Compliance, it shall not be necessary for that 8 person to sign a separate Assurance of Compliance each time that person is 9 subsequently given access to confidential material. 10 8. DOCUMENTS or DISCOVERY MATERIALS designated 11 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” and any copies, summaries, 12 extracts, notes, or memoranda relating thereto may be disclosed by counsel of record 13 for the Parties to this ACTION only to the following: 14 a. Attorneys acting on behalf of the parties in this matter; 15 b. The office personnel employed by the counsel working under the direct supervision of said counsel; 16 17 c. The Court and its personnel; 18 d. Experts and consultants necessarily retained by counsel of record 19 in this litigation, but only if these experts and consultants comply 20 with this agreement in full and read, sign, and agree to be bound 21 by all of its terms. 22 9. Any Party wishing to attach DOCUMENTS or DISCOVERY 23 MATERIALS designated “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” as an 24 exhibit to any deposition in this ACTION shall inform the court reporter or 25 transcriber who reports or transcribes testimony about this Protective Order before 26 the beginning of the deposition. Portions of deposition transcripts marked 27 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” shall be 28 treated as if they were the CONFIDENTIAL documents. 6 1 10. In the event DOCUMENTS or DISCOVERY MATERIALS designated 2 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” either 3 by agreement among counsel or by order of the Court, are lodged or filed with the 4 Court, or used in connection with any motion, application, or pre-trial proceeding 5 in this ACTION, they shall be submitted with an application to file such 6 documents under seal and shall be placed in an envelope bearing the caption of 7 this matter and the proper “CONFIDENTIAL” or “CONFIDENTIAL 8 ATTORNEYS’ EYES ONLY” notation. The Parties shall comply with Local Rule 9 79-5 with respect to filing documents and/or things under seal and shall 10 carefully review and comply with this Court’s instructions -- as set forth under 11 the caption “INTRODUCTION” -- in this Order. 12 11. All DOCUMENTS or DISCOVERY MATERIALS designated 13 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” 14 including all copies and information obtained from such shall be used, subject to the 15 provisions hereof, by the person receiving them only in connection with prosecuting 16 or defending persons or entities named in and in connection with this action, unless 17 otherwise ordered by the Court. All DOCUMENTS or DISCOVERY 18 MATERIALS designated “CONFIDENTIAL” or “CONFIDENTIAL19 ATTORNEYS’ EYES ONLY” documents shall not be used for any business, 20 competitive, or other purposes, and shall not be disclosed to any person or entity, 21 except as provided herein. However, the Protective Order is not intended to apply to 22 documents or information that are or were already publicly available, or documents 23 or information already possessed by a person without restriction on use or 24 disclosure. 25 12. In the event that a Party receiving DOCUMENTS or DISCOVERY 26 MATERIALS designated as “CONFIDENTIAL” or “CONFIDENTIAL27 ATTORNEYS’ EYES ONLY” disagrees with such a designation, that Party shall 28 serve a written notice of objection to the Party who or which so designated the 7 1 DOCUMENTS or DISCOVERY MATERIALS. The Parties shall then attempt in 2 good faith to resolve the dispute. If the Parties are unable to come to a resolution 3 after a good faith attempt to resolve the dispute, the Party challenging the protection 4 of the DOCUMENTS or DISCOVERY MATERIALS shall arrange a conference 5 with the Court to resolve the dispute, if possible, or proceed with a noticed motion 6 (or ex parte application if warranted) to resolve the dispute. The designation may 7 not be disregarded unless and until it is ordered changed by the Court. The Party 8 who or which designated the DOCUMENTS OR DISCOVERY MATERIALS 9 as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” 10 shall bear the burden of establishing the propriety of the challenged 11 designation. 12 13. The parties, their counsel, and all others bound by this agreement agree 13 that upon coming across material from an adversary that is apparently confidential 14 or privileged, and that appears was disclosed inadvertently, counsel (including 15 those the materials have been shared with) has a duty to: (1) examine the material 16 only to the extent necessary to determine that it is privileged or confidential; (2) 17 immediately notify the sender of the disclosure; and (3) attempt to resolve the 18 dispute informally, or refrain from using the material until further Court order. See 19 Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007) (California Supreme Court 20 defining a lawyer’s ethical duties when coming across material from an adversary 21 that is obviously confidential or privileged and it appears that the material was 22 disclosed inadvertently). 23 14. Upon final determination of this action, whether by judgment, 24 settlement, or otherwise, including all appeals: 25 a. The Parties’ counsel of record and any other person who has 26 received DOCUMENTS or DISCOVERY MATERIALS 27 designated as “CONFIDENTIAL” or “CONFIDENTIAL- 28 ATTORNEYS EYES ONLY” shall maintain, destroy or, if 8 1 requested by the producing Party’s counsel, assemble and return 2 to the producing Party’s counsel all materials so produced, along 3 with all copies, extracts, summaries, and compilations thereof, 4 except material constituting the work product of any counsel, 5 which shall be kept confidential thereafter. In returning the 6 DOCUMENTS or DISCOVERY MATERIALS, each Party shall 7 select and arrange with a messenger service to pick up and return 8 the DOCUMENTS or DISCOVERY MATERIALS to the 9 respective Party’s counsel; and b. 10 Counsel of record will continue to protect the confidentiality of 11 information contained in DOCUMENTS or DISCOVERY 12 MATERIALS designated as “CONFIDENTIAL” or 13 “CONFIDENTIAL-ATTORNEYS EYES ONLY.” 14 15. The execution of this Protective Order shall not preclude any party 15 from moving the Court for protective orders in the course of this litigation, from 16 modifying or expanding this Protective Order as needed, or from objecting to 17 discovery that it believes to be improper. 18 16. This Protective Order is subject to amendment and modification by 19 further written stipulation among counsel of record in this ACTION or by order of 20 the Court. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 The Parties to this agreement may exercise any rights they may have, at law 2 or in equity, to enforce its terms. 3 4 IT IS SO ORDERED. 5 6 DATED: August 14, 2013 7 ___________________________________ 8 MARGARET A. NAGLE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 EXHIBIT A 2 ASSURANCE OF COMPLIANCE 3 4 I, ______________________, under penalty of perjury under the laws of the United States 5 of America, declare and state as follows: 6 I reside at __________________, in the City/County of _______________ and 7 State/Country of __________________; 8 I have read the annexed Stipulated Protective Order, (“Protective Order”) dated August 14, 9 2013, in this action entitled VBCONVERSIONS, LLC v. VM INNOVATIONS, INC. et al., 10 United States District Court Case No. CV 13-00852 GAF (MANx), which currently is 11 pending in the United states District Court, Central District of California; that I am familiar with 12 and agree to comply with and be bound by the provisions of that Protective Order; 13 I will not divulge to persons other than those specifically authorized by the Protective 14 Order, and will not copy or use any Litigation Materials designated as CONFIDENTIAL except 15 solely as permitted by the Protective Order; and 16 I consent to the jurisdiction of this Court for the purpose of enforcing said Protective 17 Order, enjoining any violation or threatened violation of the Protective Order or seeking damages 18 for the breach of said Protective Order. 19 20 ___________________________________ (Signature) 21 22 23 24 25 26 27 28 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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