Insomniac Inc et al v. D Donnie Productions Inc et al

Filing 15

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Joint REQUEST for Protective Order for Governing Confidential Information 14 (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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INSOMNIAC, INC., a California
corporation; and PASQUALE
ROTELLA, an individual,

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Plaintiffs,

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v.

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D DONNIE PRODUCTIONS, INC.,
formerly known as DISCO
PRODUCTIONS, INC., a Louisiana
corporation; JAMES D. ESTOPINAL,
JR., aka DISCO DONNIE, an
individual; and DOES 1 through 10,
inclusive,

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Defendants.

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DISCO PRODUCTIONS, INC., a
Florida corporation and JAMES
DONALD ESTOPINAL, an individual,
Counterclaim Plaintiffs,

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Case No. CV 13-02284-ODW(MANx)

v.
PASQUALE ROTELLA, an individual
and INSOMNIAC, INC., a California
corporation,
Counterclaim Defendants.

PROTECTIVE ORDER ENTERED
PURSUANT TO THE PARTIES’
STIPULATION

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on

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the parties’ [Proposed] Stipulated Protective Order Governing Confidential

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Information (“Stipulation”) filed on October 29, 2013, the terms of the protective

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order to which the parties have agreed are adopted as a protective order of this

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Court (which generally shall govern the pretrial phase of this action) except to the

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extent, as set forth below, that those terms have been substantively modified by the

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Court’s amendment of paragraph V. A. of the Stipulation.

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The parties are expressly cautioned that the designation of any information,
document, or thing as Confidential, Highly Confidential – Attorneys’ Eyes Only, or

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other designation(s) used by the parties, does not, in and of itself, create any

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entitlement to file such information, document, or thing, in whole or in part, under

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seal. Accordingly, reference to this Protective Order or to the parties’ designation

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of any information, document, or thing as Confidential, Highly Confidential –

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Attorneys’ Eyes Only, or other designation(s) used by the parties, is wholly

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insufficient to warrant a filing under seal.

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There is a strong presumption that the public has a right of access to judicial

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proceedings and records in civil cases. In connection with non-dispositive motions,

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good cause must be shown to support a filing under seal. The parties’ mere

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designation of any information, document, or thing as Confidential, Highly

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Confidential – Attorneys’ Eyes Only, or other designation(s) used by parties, does

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not -- without the submission of competent evidence, in the form of a

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declaration or declarations, establishing that the material sought to be filed

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under seal qualifies as confidential, privileged, or otherwise protectable --

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constitute good cause.

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Further, if sealing is requested in connection with a dispositive motion or

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trial, then compelling reasons, as opposed to good cause, for the sealing must be

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shown, and the relief sought shall be narrowly tailored to serve the specific interest

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to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th
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Cir. 2010). For each item or type of information, document, or thing sought to be

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filed or introduced under seal in connection with a dispositive motion or trial, the

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party seeking protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again, competent

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evidence supporting the application to file documents under seal must be

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provided by declaration.

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Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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Notwithstanding any other provision of this Protective Order, in the event

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that this case proceeds to trial, all information, documents, and things discussed or

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introduced into evidence at trial will become public and available to all members of

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the public, including the press, unless sufficient cause is shown in advance of trial

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to proceed otherwise.

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TERMS OF PROTECTIVE ORDER
I. SCOPE
This Protective Order shall apply to and govern documents, information, and

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other matter produced or furnished during the course of discovery in the above-

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captioned proceedings pursuant to the Federal Rules of Civil Procedure, the Local

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Rules of the above-entitled Court (“Local Rules”), or otherwise, to the extent such

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materials are designated as constituting or containing Confidential Information

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pursuant to Section III of this Protective Order. This Protective Order does not

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affect the enforceability of any existing confidentiality agreements, confidentiality

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provisions, or protective orders governing documents, information, or other matter
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produced in connection with this Action, including, but not limited to,

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confidentiality agreements, protective orders, or restrictions on the dissemination of

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materials collected or created in the course of other litigation.

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II. DEFINITIONS

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A.

United States District Court for the Central District of California.

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“Action” shall refer to the above-entitled proceedings in the

B.

“Designating Party” shall mean a party or third party that

designates information as confidential pursuant to Section III below.

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C.

“Furnishing Party” shall mean a party to the Action, or a third

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party subject to subpoena, on behalf of which documents, things, or information are

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furnished or produced in connection with the Action.

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D.

“Receiving Party” shall mean a party to the Action to which

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documents, things, or information are furnished or produced in connection with the

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Action.

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E.

“Confidential Information” shall mean confidential or

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proprietary business, personal, or technical information that is not generally known

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and that the Designating Party would not normally reveal to third parties, or would

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cause or require third parties to maintain in confidence, that is designated with a

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legend set forth in Section III hereof.

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F.

“Counsel” shall mean counsel of record for a party to this

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Action and secretarial, clerical, and paralegal personnel assisting such counsel.

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“Counsel” shall not include persons engaged or retained by or on behalf of any

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party as an Expert Consultant.

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G.

“Expert Consultant” shall mean any person other than Counsel

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who is retained or sought to be retained by or on behalf of a party to the Action to

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advise and assist in the preparation and presentation of the party’s case. For

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purposes of this Protective Order, Expert Consultants shall include individuals

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retained as experts, whether or not designated to testify at trial.
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III. DESIGNATION OF INFORMATION
A.

Documents, information, and other matter produced or furnished

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during the course of the Action, including, without limitation, documents,

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information, and matter produced in response to requests for production of

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documents, to interrogatories, to requests for admissions, to subpoenas, or during

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depositions, may be designated as constituting or containing Confidential

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Information, prior to producing or furnishing the documents or things, by placing

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on each page and each thing to which the designation applies a legend stating

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES

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ONLY.” The Designating Party shall make this designation based on its good faith

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determination that such designation applies.

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B.

For information produced in some form other than documentary

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and for any other physical items, the Designating Party shall affix in a prominent

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place on the exterior of the container or containers in which the information or item

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is stored the legend stating “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL

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— ATTORNEYS’ EYES ONLY.”

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C.

The parties agree Confidential Information may include, but is

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in no way limited to, non-public financial information, accounting records, financial

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and business models, and trade secrets. Pursuant to Section VII below, any party’s

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inadvertent failure to mark such materials as constituting or containing Confidential

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Information shall not constitute a waiver of its claim to confidentiality.

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D.

If a third party produces documents or information of any other

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kind pursuant to a subpoena or otherwise, all such documents shall be provisionally

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designated as Confidential Information subject to the provisions of paragraph IV.

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B. (“Confidential”), until fifteen (15) days after all of the parties to the Action have

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received the documents, unless the parties otherwise agree in writing. If a party to

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the Action believes that any documents or information produced by a third party

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constitute or contain Confidential Information of the party or of its past or present
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affiliates, employees, or customers, the party to the Action may designate it as

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constituting or containing Confidential Information within fifteen (15) days of

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receipt of the information by notifying the other parties of the documents or

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information it deems to constitute or contain Confidential Information, and re-

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producing the pages constituting or containing Confidential Information with one of

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the legends set forth in paragraph III. A. Thereafter, the documents or information

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will no longer be deemed Confidential Information for purposes of this Protective

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Order, except to the extent so designated within such fifteen (15)-day period.

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E.

For information presented orally at deposition, a confidentiality

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designation may be made on the record through a request that specific information

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provided in response to questions be designated by the deposition reporter as

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“Confidential” or “Highly Confidential — Attorneys’ Eyes Only”; such a

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designation made on the record shall be effective immediately. Additionally, a

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party or third party may designate deposition information as “Confidential” or

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“Highly Confidential —Attorneys’ Eyes Only” by giving written notice (via e-mail,

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letter, or otherwise) transmitted to all parties and to the court reporter on or before

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the date that the signed transcript and/or errata are due. Those portions of the

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transcript of a deposition session for which no designation was made on the record

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shall be provisionally designated as “Confidential” and subject to the provisions of

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paragraph IV. B. until the date that the signed transcript and/or errata are due.

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Thereafter, the transcript will no longer be deemed Confidential Information for

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purposes of this Protective Order, except to the extent so designated at the

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deposition or in a written notice, by letter, e-mail, or otherwise, transmitted to all

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parties and the court reporter within the time specified above.

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IV. DISCLOSURE OF CONFIDENTIAL INFORMATION

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A.

Confidential Information shall be used solely for the purpose of

conducting this Action and for no other purpose.

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B.

Confidential Information designated as “CONFIDENTIAL”

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may be disclosed to Counsel for the Receiving Party, including in-house counsel

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supervising this matter, and may be disclosed by Counsel for the Receiving Party to

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the following additional persons only:

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(1)

The parties and the current and former employees of such

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parties (or their parent, subsidiary, or other affiliated entities)

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whose assistance Counsel requests for purposes of this

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litigation;

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(2)

The Court, the jury, members of the staff of the Court, and other

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persons present during trial whose functions reasonably

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necessitate access to Confidential Information, subject to the

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procedures set forth in paragraphs V. A. through D., inclusive,

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hereof;

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(3)

Qualified court reporters taking testimony in the above-

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captioned proceedings, and necessary stenographic and clerical

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personnel thereof;

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(4)

Percipient witnesses at deposition, or in preparation for

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deposition testimony or trial, provided that such witnesses are

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not permitted to retain the Confidential Information following

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the preparation session or deposition;

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(5)

Expert Consultants, and their employees, of the Receiving Party;

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(6)

Non-technical jury or trial consulting services retained by

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Counsel for a party; and
(7)

The author of the document or the original source of the

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information, and those persons reasonably believed to have

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received the document or be knowledgeable about its contents in

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the ordinary course of business.

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C.

Confidential Information designated as “HIGHLY

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CONFIDENTIAL  ATTORNEYS’ EYES ONLY” may be disclosed to Counsel

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for the Receiving Party, including in-house counsel supervising this matter, and

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may be disclosed by Counsel for the Receiving Party to the following additional

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persons only:

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(1)

The Court, the jury, members of the staff of the Court, and other

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persons present during trial whose functions reasonably

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necessitate access to Confidential Information, subject to the

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procedures set forth in paragraphs V. A. through D., inclusive,

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hereof;
(2)

Qualified court reporters taking testimony in the above-

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captioned proceedings, and necessary stenographic and clerical

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personnel thereof;

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(3)

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Non-technical jury or trial consulting services retained by
Counsel for a party; and

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The author of the document or the original source of the

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information, and those persons reasonably believed to have

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received the document or be knowledgeable about its contents in

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the ordinary course of business.

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D.

Confidential Information may be disclosed to those persons

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identified in paragraphs B. (5) through B. (6) and C. (3) above, provided that, prior

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to the disclosure of any Confidential Information to such persons: (a) the person

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shall have been informed of the confidential nature of all Confidential Information

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and the need to limit its use strictly to the purposes permitted herein, and shall agree

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to be bound by such restrictions; and (b) the person shall execute and deliver to the

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party providing such Confidential Information (who shall retain the executed

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original in perpetuity and promptly provide an executed copy to the opposing party

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upon request) the written “Non-Disclosure Agreement” in the form attached hereto

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as Exhibit A.

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V. USE OF CONFIDENTIAL INFORMATION

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A.

In the event that any brief, memorandum, or other paper to be

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submitted to the Court by or on behalf of a Receiving Party contains Confidential

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Information of another party or third party, the Receiving Party shall submit an

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application to file the Confidential Information under seal, which application

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shall comply with the requirements of Local Rule 79-5 and this Protective

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Order. If the Furnishing Party is a third party who or which produced information

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pursuant to subpoena and designated some or all of that information as Confidential

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Information, the Receiving Party submitting the Confidential Information to the

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Court shall provide contemporaneous notice to the Furnishing Party that its

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Confidential Information has been submitted to the Court with an application to

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file such Confidential Information under seal.

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B.

All documents and copies of documents, made, drafted, or

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prepared by or on behalf of a Receiving Party that contain, memorialize, or

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summarize Confidential Information, including, without limitation, attorney notes

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or abstracts or other derivative documents or things, shall be handled as if they were

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designated pursuant to Section III hereof.

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C.

Counsel for Receiving Parties and Expert Consultants of

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Receiving Parties: (1) shall maintain all documents and things containing

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Confidential Information in a secure place that is reasonably inaccessible to anyone

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other than those persons authorized under this Protective Order to receive such

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information; and (2) shall take reasonable steps to ensure that such information is

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not disclosed to such other persons.

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D.

In the event of any disclosure of Confidential Information to any

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person or entity that is not permitted by the terms hereof, the Receiving Party that

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made the disclosure shall, upon learning of it:
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(1)

Immediately notify the person or entity to whom the disclosure

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was made that he, she or it has received Confidential

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Information subject to this Protective Order;

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(2)

Immediately make all reasonable efforts to preclude further

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dissemination or use by the person or entity to whom disclosure

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was made; and

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(3)

Immediately notify the Designating Party of the identity of the

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person(s) or entity to whom disclosure was made, the

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circumstances of the disclosure, and the steps taken to ensure

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against the dissemination or use of the information.

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VI. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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A.

If a Receiving Party is served by a non-party with a subpoena or

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an order issued in other litigation that would compel disclosure of any information

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or items designated in this Action as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL— ATTORNEYS’ EYES ONLY,” the Receiving Party must so

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notify the Designating Party, in writing no more than ten (10) court days after

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receiving the subpoena or order. Such notification must include a copy of the

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subpoena or court order.

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B.

The Receiving Party must also immediately inform in writing

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the non-party who caused the subpoena or order to issue in the other litigation that

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some or all the material covered by the subpoena or order is the subject of this

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Protective Order. In addition, the Receiving Party must deliver a copy of this

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Protective Order promptly to the non-party in the other action that caused the

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subpoena or order to issue.

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C.

The purpose of imposing these duties is to alert the interested

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parties to the existence of this Protective Order and to afford the Designating Party

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in this case an opportunity to try to protect its confidentiality interests in the court
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from which the subpoena or order issued. The Designating Party shall bear the

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burdens and the expenses of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from

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another court.

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VII. INADVERTENT FAILURE TO DESIGNATE CONFIDENTIAL

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INFORMATION

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A.

Inadvertent failure to designate documents or other information

as Confidential Information at the time of production may be remedied by

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supplemental written notice. If such notice is given, the identified materials shall

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thereafter be fully subject to this Protective Order. A Furnishing Party’s

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inadvertent or unintentional disclosure of Confidential Information, without the

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confidentiality designation, shall not be deemed a waiver in whole or in part of the

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Furnishing Party’s claim of confidentiality, either as to the specific information

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disclosed or as to any other information relating thereto, on the same or related

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subject matter.

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B.

Any such inadvertently or unintentionally disclosed Confidential

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Information shall be designated as soon as reasonably possible after the Furnishing

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Party becomes aware of the inadvertent or unintentional disclosure. Counsel for the

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Furnishing Party with assistance of the Receiving Parties shall thereafter:

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(1)

Use reasonable efforts to retrieve all such particular documents,

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things, or information, and all copies thereof, from any persons

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not authorized by this Protective Order to receive such

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materials;

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(2)

Mark the particular documents, things, or information, and all

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copies thereof, with the appropriate legend as set forth in

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Section III; and

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(3)

Treat the document, thing, or information, all copies thereof, and

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any notes or other documents incorporating such information in

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accordance with the designation.

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VIII. CHALLENGES TO CONFIDENTIALITY DESIGNATION

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A.

If a Receiving Party disputes a designation of information as

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constituting or containing Confidential Information or disputes the level of

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protection designated for the information, the Receiving Party may at any time

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notify the Designating Party in writing of the particular designation that is disputed

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and the basis for disputing the designation. Such notice shall be delivered in a

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separate writing so as to notify the Designating Party of the documents so

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challenged, and shall set forth with particularity the grounds for the challenge to

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each document or category of documents.

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B.

In the event written notice of an objection to the designation of

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information as constituting or containing Confidential Information is served

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pursuant to the preceding paragraph, the disputants shall first attempt to resolve

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such dispute in good faith on an informal basis. The Designating Party shall, within

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forty-five (45) days after such written notice was provided or such other time to

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which the disputing parties may agree: (1) re-produce any documents as required

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to reflect a changed designation agreed upon by the parties; and/or (2) as to those

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documents for which the dispute cannot be resolved, either (a) produce the

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documents as demanded in the Receiving Party’s notice of objection, or (b) file a

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motion with the Court seeking a determination that the information was properly

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designated. The Designating Party shall carry the burden of persuasion on such a

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motion to establish that the information was properly designated. Prior to the

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determination of such motion, the Parties shall treat the disputed information as

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though it were properly designated.

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C.

Any party required to move this Court for relief under the

provisions of paragraph VIII. B. as a result of written objections asserted by a
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Receiving Party prior to the entry of this Protective Order shall have forty-five (45)

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days from the entry of this Protective Order to bring its motion.

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IX. INADVERTENT OR UNAUTHORIZED DISCLOSURE OF

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PRIVILEGED INFORMATION

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The inadvertent or unauthorized disclosure of information or documents that

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a Furnishing Party believes constitute, contain, or reflect information otherwise

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protected by the attorney-client privilege, the work product doctrine or any other

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privilege or immunity from discovery (“Privileged Information”), shall not

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constitute a waiver or estoppel with respect to such Privileged Information, or

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generally of any such privilege or immunity or other ground for withholding

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production to which the Furnishing Party or any other person would otherwise be

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entitled. Upon learning of any such inadvertent or unauthorized disclosure of

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Privileged Information, the Furnishing Party shall promptly provide notice to the

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Receiving Party directing that all copies of documents containing such Privileged

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Information be returned to the Furnishing Party or destroyed and barring any party

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from using or retaining those documents or any copies thereof in the action or

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otherwise. All parties receiving such notice shall immediately return all copies of

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the Privileged Documents described in the notice, shall delete such material from

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any litigation-support or other database, shall destroy all notes or other work

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product reflecting the contents of such material, and shall not use such Privileged

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Documents; provided, however, that any party receiving such notice, after returning

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the Privileged Documents, may move within thirty (30) days after receiving such

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notice and on reasonable notice, and on grounds other than the inadvertent or

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unauthorized disclosure of such documents, for an order challenging the

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designation of such documents as Privileged Documents. If, and only if, the party

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receiving notice of inadvertent or unauthorized disclosure of Privileged Documents

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elects to move for such an order, that party shall be permitted to keep only one copy

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of the Privileged Document for the sole purpose of submitting such copy with the
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Court for filing under seal when making its motion. The parties agree that

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permission to keep the one copy for the sole purpose of filing it with the Court

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under seal shall not be grounds for arguing that the document is not privileged or

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that any privilege was waived. The parties agree that the terms in this Section do

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not in any way limit or alter the parties’ existing obligations under the applicable

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law.

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X. CONCLUSION OF LITIGATION

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A.

No later than three (3) months after the final termination of the

Action, including the exhaustion of any appeals and cross-appeals and requests for

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discretionary review, each person or party subject to the terms of this Protective

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Order shall either: (1) return all Confidential Information produced by other parties

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to each respective Furnishing Party (except to the extent such designated

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information is maintained on electronic media and cannot be returned, in which

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case such designated information shall be erased or otherwise destroyed); or

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(2) destroy all Confidential Information produced by other parties. Nothing herein

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shall obligate any person or party to destroy: (i) attorney work product, including,

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without limitation, attorney notes or memos and deposition summaries; (ii) any

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transcript of any deposition, hearing, or trial proceeding; or (iii) any pleading or

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paper served on another party or filed with the Court in the Action.

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B.

Notwithstanding the foregoing, a Receiving Party shall be

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permitted to designate, in writing and no later than one (1) month after the final

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termination of the Action, any Confidential Information it believes, in good faith, is

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necessary for its counsel to maintain after the termination of the litigation for

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purposes of reference and use in the event of further disputes or litigation between

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the parties. Upon giving this notice, the Receiving Party may keep one (1) copy of

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any such designated Confidential Information, subject to the on-going protections

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of this Protective Order. If any disputes arise out of such designations, the

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disputants shall attempt to resolve such disputes in good faith on an informal basis.
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C.

This Court shall retain jurisdiction over the Action following its

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termination (whether by judgment, settlement, or otherwise) for the purpose of

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enforcing this Protective Order.

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XI. AMENDMENTS OR MODIFICATIONS

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A.

This Protective Order may be amended by agreement of counsel

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for the parties to this Protective Order and approval of the Court in the form of a

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stipulation that shall be filed with the Court. Any party may, on motion and for

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good cause shown, apply to the Court for modification of this Protective Order.

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B.

This Protective Order shall become effective immediately upon

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its entry by the Court. The parties agree that, pending the entry of this Protective

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Order by the Court, any production of documents or information will be subject to

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the terms of this Protective Order.

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C.

Nothing in this Protective Order precludes the entry of

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additional protective orders in the Action, if such additional protective orders are

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appropriate.

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XII. MISCELLANEOUS

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Nothing herein limits the ability of a party or third party to use or to disclose
its own Confidential Information.

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DATED: November 5, 2013
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MARGARET A. NAGLE

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UNITED STATES MAGISTRATE JUDGE

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EXHIBIT “A”

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NON-DISCLOSURE AGREEMENT

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I certify that I have carefully read the Protective Order (“Order”) in the case
of Insomniac, Inc., et al. v. D Donnie Productions, Inc., et al., Case No. CV 1302284-ODW(MANx), and that I fully understand the terms of the Order. I
recognize that I am bound by the terms of the Order, and I agree to comply with
those terms. I hereby consent to the personal jurisdiction of the United States
District Court for the Central District of California for any proceedings involving
the enforcement of the Order.

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Executed this day ____ of

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, 20__, at

.

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Signature

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Name

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Affiliation or Company

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Business Address

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Home Address

,