Kevin Smyth v. Yu Chang et al

Filing 128

CONFIDENTIALITY ORDER by Magistrate Judge Patrick J. Walsh re Stipulation for Protective Order, 115 . (ca)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

8
9
10
11
12

KEVIN SMYTH, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,

13

No.: CV-13-03008 (RGK) (PJWx)
[PROPOSED]
CONFIDENTIALITY ORDER

Plaintiffs,

14

vs.

15
16
17
18
19

DISOVERY MATTER

YU CHANG, YAU-SING TANG, XIAO
RONG TENG, CHINA GRITECH, INC.,
GENE MICHAEL BENNETT, MING
FANG ZHU, ZHENG “ANNE” WANG,
CHARLES LAW, LUN ZHANG DAI, AND
HAI LIN ZHANG

20

Defendants.

21
22
23
24

For good cause appearing for the entry of this Confidentiality Order under
Federal Rule of Civil Procedure 26(c),
It is hereby ORDERED that:

25
26
27

1.

This Confidentiality Order shall govern the handling, disclosure and

use of all information that is furnished orally, in writing, by visual inspection or
otherwise, by, through or on behalf of any party or any third party (the “Producing

28
0
[PROPOSED] CONFIDENTIALITY ORDER

1
2

Party”) to any other party (the “Receiving Party”) in connection with discovery to
be conducted in the above-entitled action (the “Litigation”).

3
4
5
6
7
8
9

2.

“Confidential Information,” as used herein, means information of any

type, kind or character which is designated “Confidential” by any of the parties to
the action or other person(s) producing the information (including nonparties),
whether it be a document, information contained in a document, information
revealed during a deposition, information revealed in an interrogatory answer or
otherwise. In designating information as “Confidential,” the Producing Party will
make such designation only as to that information that it in good faith believes is

10

confidential within the meaning of Rule 26(c) of the Federal Rules of Civil

11

Procedure and as further defined below. Information or material which is available

12

to the public, including press releases, public documents filed with the Securities

13

and Exchange Commission, and the like shall not be classified as “Confidential.”

14

Confidential Information includes or constitutes, but is not limited to, sensitive and

15

nonpublic business personnel information, including financial or tax information,

16

addresses, phone numbers and Social Security numbers; trade secrets; sensitive

17

proprietary or confidential research, development, commercial non-public financial

18

information, commercially sensitive information, or personal information. The

19

parties will make a good-faith effort to use the “Confidential” designation only

20

when needed.

21

3.

“Highly Confidential-Attorney’s Eyes Only Information” describes

22

extremely sensitive Confidential Information disclosure of which to a party or non-

23

party would create substantial risk of serious injury that could not be avoided by

24

less restrictive means. The parties will make a good-faith effort to use the “Highly

25

Confidential-Attorneys’ Eyes Only” designation only when needed.

26

4.

Confidential Information or Highly Confidential- Attorneys’ Eyes

27

Only Information produced or exchanged in the course of this litigation shall be

28

used solely for the purpose of prosecuting, defending or attempting to settle this
1
[PROPOSED] CONFIDENTIALITY ORDER

1
2

Litigation and for no other purpose whatsoever, and shall not be disclosed to any
person except in accordance with the terms hereof.

3
4
5

5.

Except by agreement between the parties or further order of this Court,

information designated as Confidential Information under this Confidentiality
Order shall not be disclosed to any person other than the following:

6

(a)

7
8
9
10

including in-house counsel and co-counsel, paralegals, clerks, secretaries, and other
persons employed or retained by the named parties’ counsel to assist counsel in the
preparation of this litigation (collectively referred to as a party’s “legal team”);
(b)

11
12

Counsel representing the named parties in the litigation,

Counsel representing any insurer or indemnitor of any

Defendant, including the insurer’s or indemnitor’s legal team;
(c)

13

The named parties, including officers or employees of any party

14

to this action that are assisting counsel in the prosecution or defense of this

15

Litigation;

16

(d)

Actual or potential independent experts or consultants;

17

(e)

Any person who authored, or has previously received or is

18

reasonably believed to have been provided access to the material in the ordinary

19

course of his or her business;

20
21

(f)

Any actual or potential deponent or witness, including former

employees, officers or agents of a party (and clerical employees associated with the

22

deponent or witness), provided that there is a reasonable basis to believe that such

23

person will possess relevant information or knowledge regarding such material or

24

will give relevant testimony regarding the material, and for the purposes of

25

refreshing recollection or impeachment;

26
27

(g)

Any court reporter or other person involved in recording

deposition testimony in this litigation by any means and acting in that capacity;

28
2
[PROPOSED] CONFIDENTIALITY ORDER

1
2
3

(h)

by the Court whose duties require access to the Confidential Information, including
court personnel, jurors and alternate jurors; and

4
5
6

The Court (and any appellate court) and any persons employed

(i)

The person(s) (including third parties) who produced the

particular Confidential Information in question, and any officer, employees or agent
of such producer.

7
8
9
10

6.

Except by agreement between the parties or further order of this Court,

information designated as Highly Confidential – Attorneys’ Eyes Only under this
Confidentiality Order shall not be disclosed to any person other than the following:

11

(a)

The Court and any Court staff and administrative personnel;

12

(b)

Counsel for any party to this Litigation, including support staff

13

of such counsel;

14

(c)

Any court reporter employed in this Litigation and acting in that

(d)

Expert or consultants retained by counsel to assist in the

15

capacity;

16
17

preparation of this Litigation or to testify at trial or at any other proceeding in this

18

Litigation;

19
20

(e)

Any person identified as having authored or previously received

such information designated as Highly Confidential-Attorneys’ Eyes only and

21
22
23
24
25
26
27

(f)

Actual or potential witness whose testimony is being taken

before trial, at any hearing, or at trial or whose testimony is reasonably anticipated
to be taken before trial, at any hearing, or at trial where the Highly ConfidentialAttorney’s Eyes Only Information is reasonably anticipated to relate to the
witnesses’ testimony. Such disclosure shall be limited to fact witnesses whose
identity has previously been disclosed before the date of testimony, whether by
notice of deposition, trial witness lists, or otherwise. Witnesses shown Highly

28
3
[PROPOSED] CONFIDENTIALITY ORDER

1
2

Confidential-Attorneys’ Eyes Only Information shall not be allowed to retain
copies.

3
4
5
6
7
8

7.

Counsel desiring to reveal Confidential Information or Highly

Confidential-Attorneys’ Eyes Only Information to any persons referred to in
Paragraphs 5 or 6 shall inform such person that the material is subject to a
confidentiality order and shall provide such person with a copy of this
Confidentiality Order before disclosure of any material designated as Confidential.
Any person who receives this Confidentiality Order and is provided with any

9

material designated as Confidential or Highly Confidential-Attorneys’ Eyes Only

10

shall execute an Acknowledgement in the form attached as Exhibit A hereto and

11

agree to be bound by this Confidentiality Order and to be subject to the jurisdiction

12

of this Court for any proceedings related to the enforcement of this Confidentiality

13

Order. Counsel for the party who provided the Confidential Information or Highly

14

Confidential-Attorneys’ Eyes Only Information to the persons listed in Paragraph 5

15

or 6 shall retain all original signed certificates obtained from any person pursuant to

16

this Paragraph. Executed Exhibits A shall not be discoverable except as required to

17

enforce this Order or as otherwise allowed under the Federal Rules of Civil

18

Procedure and case law interpreting those rules.

19

8.

Information designated Confidential or Highly Confidential-Attorneys’

20

Eyes Only under this Confidentiality Order also may be disclosed if: the person or

21

non-party making the designation consents to such disclosure; the Court, after

22

notice to all affected persons, allows such disclosure or the party to whom

23

Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information

24

has been produced thereafter becomes obligated to disclose the information in

25

response to a lawful subpoena, provided that the subpoenaed party gives prompt

26

notice to counsel for the party which made the designation, and permits counsel for

27

that party sufficient time to intervene and seek judicial protection from the

28

enforcement of this subpoena, including without limitation entry of an appropriate
4
[PROPOSED] CONFIDENTIALITY ORDER

1

protective order in the action in which the subpoena was issued.

2
3
4
5
6
7
8

9.

(a)

Documents produced in this action may be designated as

“Confidential” or “Highly Confidential-Attorneys’ Eyes Only” by marking each
page of the document(s) so designated with a stamp stating “Confidential” or
“Highly Confidential-Attorneys’ Eyes Only.” The “Confidential” or “Highly
Confidential-Attorneys’ Eyes Only” designation shall be stamped in a size and
location which makes the designation readily apparent and in a manner which does
not conceal or affect the legality or content of the document. The “Confidential” or

9

“Highly Confidential-Attorneys’ Eyes Only” designation shall be affixed to any

10

document produced or generated in the course of this litigation which mentions,

11

discusses, or comments upon any Confidential Information or Highly Confidential-

12

Attorneys’ Eyes Only Information. In lieu of marking the original of a document, if

13

the original is not produced the Producing Party may mark copies that are produced

14

or exchanged. Originals shall be preserved for inspection.

15

(b)

Any Confidential Information or Highly Confidential-Attorneys’

16

Eyes Only Information that is not reduced to documentary, tangible, or physical

17

form, and that is otherwise not readily designated as “Confidential” or “Highly

18

Confidential-Attorneys’ Eyes Only” pursuant to the preceding paragraph, may be

19

designated “Confidential” or “Highly Confidentially-Attorneys’ Eyes Only” by

20

informing counsel for the parties in writing that it is “Confidential” or “Highly

21

Confidential-Attorneys’ Eyes Only.”

22

10.

(a)

Any deposition transcript or videotaped (or otherwise recorded)

23

deposition containing Confidential Information or Highly Confidential-Attorneys’

24

Eyes Only Information be marked on the cover “Confidential” or “Highly

25

Confidential-Attorneys’ Eyes Only” and shall indicate as appropriate within the

26

transcript and on the videotape or other recording that the Information has been so

27

designated. Information (including exhibits) disclosed at the deposition of a party or

28

one of its present or former officers, directors, employees, agents or independent
5
[PROPOSED] CONFIDENTIALITY ORDER

1
2

experts retained by counsel for the purpose of this litigation, or (b) the deposition of
a nonparty (which information pertains to a party) may be designated by any party

3

as Confidential Information or Highly Confidential-Attorneys’ Eyes Only

4

Information by indicating on the record at the deposition that the relevant portions

5

of the testimony are Confidential Information or Highly Confidential-Attorneys’

6

Eyes Only Information and are subject to the provisions of this Confidentiality

7

Order. Counsel may make a blanket designation of a deposition in its entirety

8

during a deposition. Designating counsel thereafter shall designate specific pages of

9

the transcript or parts thereof as Confidential or Highly Confidential-Attorneys’

10

Eyes Only no later than 30 days after receipt of the final deposition transcript, after

11

which time any blanket designation of a deposition in its entirety shall expire.

12

(b)

At deposition, the disclosing party shall notify the reporter on

13

the record if any Confidential Information or Highly Confidential-Attorneys’ Eyes

14

Only Information produced by a nonparty is disclosed. Any party or producing

15

nonparty may also designate information disclosed at such deposition as

16

Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information

17

by notifying the reporter, all counsel of record, and any other affected person in

18

writing within thirty (30) days of receipt of the transcript that the relevant portions

19

of the transcript and the corresponding portions of any recording of the deposition

20

should be treated as Confidential Information or Highly Confidential-Attorneys’

21

Eyes Only Information. If such “Confidential” or “Highly Confidential-Attorneys’

22

Eyes Only” designation is made, the court reporter shall be directed to affix the

23
24
25
26
27

appropriate legend on the cover page and on all Confidential or Highly
Confidential-Attorneys’ Eyes Only pages of the transcript, and to each copy thereof
(including any recording). Until thirty (30) days have passed after the receipt of any
transcript, the entire transcript and any recording of the deposition shall be deemed
to contain Confidential Information or Highly Confidential-Attorneys’ Eyes Only
Information. The parties may modify this procedure for any particular deposition

28
6
[PROPOSED] CONFIDENTIALITY ORDER

1
2

through agreement on the record at such deposition, without further order of the
Court. If filed with the Court, those portions of a deposition containing Confidential

3

Information, either in testimony or exhibits, shall be filed with the Clerk of the

4

Court under seal in the manner provided in paragraph 14.

5
6
7
8

(c)

The Designating Party shall be responsible for all additional

costs or fees charged by the court reporting agency or company in order to comply
with the Designating Party’s designations. For example, if the price of obtaining a
transcript or videotape of a deposition is increased by virtue of the Designating

9

Party’s request to treat certain information Confidential or Highly Confidential-

10

Attorneys’ Eyes Only, the Designating Party shall pay to the party requesting the

11

transcript or videotape the difference between the price with the designation and the

12

price without the designation.

13
14

11.

If a party receiving Confidential Information or Highly Confidential-

Attorneys’ Eyes Only Information learns that, by inadvertence or otherwise, it has

15

disclosed such Information to any person or in any circumstance not authorized by

16

this Confidentiality Order, that party must immediately (a) notify in writing the

17

party making the designation of the unauthorized disclosure, (b) use its best efforts

18

to retrieve all copies of the Confidential Information or Highly Confidential-

19

Attorneys’ Eyes Only Information, (c) inform the person or persons to whom

20

unauthorized disclosures were made of all the terms of this Confidentiality Order

21

and (d) request such person or persons to execute the Acknowledgment attached as

22

Exhibit A.

23

12.

(a)

Documents unintentionally produced without designation as

24

“Confidential” or “Highly Confidential-Attorneys’ Eyes Only” may be retroactively

25

designated by notice in writing of each document by Bates number if designated as

26

such within thirty (30) days after the Producing Party discovers the Confidential

27

Information or Highly Confidential-Attorneys’ Eyes Only Information is

28

undesignated and shall be treated appropriately from the date written notice of the
7
[PROPOSED] CONFIDENTIALITY ORDER

1

designation is provided to the receiving person(s).

2

(b)

3
4
5
6
7
8
9

The Producing Party shall be obligated to provide replacement

copies of any redesignated documents or materials with appropriate labeling to the
receiving person(s) within ten days of the date of the written notice of the
redesignation, unless otherwise agreed. Upon receipt of a copy of the redesignated
documents or materials, the receiving person(s) shall promptly destroy, cause to be
destroyed, or return all copies of the documents or materials in their possession or
reasonably retrievable which do not bear the new designation, unless otherwise
agreed. Upon specific written requests to the receiving person(s), within thirty days

10

after receipt of the redesignated documents or materials, the receiving party shall

11

certify in writing that all copies lacking the designation have been destroyed or

12

returned. The Receiving Party shall make a good faith effort to notify each non-

13

party to whom the Receiving Party provided redesignated documents or materials

14

of the redesignation and provide the non-party with replacement copies of any

15

redesignated documents or materials. The Receiving Party shall also provide the

16

Producing Party with the names and contact information of each non-party to whom

17

the Receiving Party provided redesignated documents or materials. The parties to

18

this litigation shall have no responsibility, duty, or liability, if a non-party receiving

19

person fails to destroy any documents that have been later re-designated or provides

20

a certification pursuant to this paragraph.
(c)

21

In the event that two copies of a document or information are

22

produced under different designations, the more restrictive designation shall apply,

23

provided that the redesignation is set forth in writing by the Producing Party.

24

Should the receiving party notice any such discrepancy, it shall promptly bring it to

25

the Producing Party’s attention.

26

13.

Other than as specifically provided for herein, this Confidentiality

27

Order does not affect any legal right or privilege related to the documents and

28

information subject to this Order, and nothing in this Order shall be construed as a
8
[PROPOSED] CONFIDENTIALITY ORDER

1
2

waiver by any party of the right to object to the subject matter of any request for
discovery in this action or to the admissibility of any evidence. Nothing in this

3

Order is intended to constitute an agreement regarding the scope of discovery. The

4

entry of this Order shall not be construed as ordering any party to produce any

5

documents or information, and shall not constitute a ruling that any documents or

6

information which may exist are relevant in any way to the issues raised in this

7

action; nor shall the entry of this Order, standing alone, be construed as a waiver by

8

any party of any privilege or immunity with respect to any document or

9

information. Nothing contained in this Order or any designation of confidentiality

10

hereunder or any failure to make such designation shall be used or characterized by

11

any party as an “admission” by a party or a party opponent.

12

14.

(a)

A party shall not be obligated to challenge the propriety of a

13

designation as “Confidential” or “Highly Confidential-Attorneys Eyes Only” at the

14

time made, and a failure to do so shall not preclude a subsequent challenge thereto.

15

Failure to object to a designation of confidentiality shall not constitute or be

16

construed as an admission nor raise an inference that the documents designated as

17

“Confidential: or “Highly Confidential-Attorneys’ Eyes Only” constitute or contain

18

confidential, proprietary information or any trade secret. A failure to challenge the

19

propriety of any designation by any party or nonparty does not constitute a waiver

20

or in any way preclude a subsequent challenge in this or any other action to the

21

propriety of such designation.

22

(b)

In the event a party objects to the “Confidential” or “Highly

23

Confidential-Attorneys’ Eyes Only” designation under this Confidentiality Order

24

by a producing person of any document (or part thereof), the objecting party shall

25

consult with the Producing Party to attempt to resolve their differences, and the

26

objecting party shall provide the Producing Party with written notice of its

27

disagreement and specifically identify the information or restriction on access that

28

is disputed. The objecting party shall simultaneously provide a copy of this signed
9
[PROPOSED] CONFIDENTIALITY ORDER

1
2

writing to each party in this litigation. If, despite good-faith effort, the parties are
unable to reach resolution through the meet and confer process within five court

3

days thereafter, the Producing Party shall have ten days to move the Court for

4

protection pursuant to Rule 26(c) of the Federal Rules of Civil Procedure; otherwise

5

the document or information shall lose it Confidential or High Confidential-

6

Attorneys’ Eyes Only designation. In any such motion, the Producing Party has the

7

burden of establishing that the “Confidential” or “Highly Confidential-Attorneys’

8

Eyes Only” designation is proper. If a motion is made, any documents or other

9

materials that have been designated “Confidential” or “Highly Confidential-

10

Attorneys’ Eyes Only” shall be treated as Confidential Information or Highly

11

Confidential-Attorneys’ Eyes Only Information until such times as the Court rules

12

that such material should not be treated as Confidential Information or Highly

13

Confidential-Attorneys’ Eyes Only Information.

14

(c)

The parties may, by stipulation, provide for exceptions to this

15

Order, and any party may seek an order of this Court modifying this Confidentiality

16

Order. Unless and until otherwise ordered by the Court, or agreed to in writing by

17

the parties (and when appropriate, nonparties), all Confidential Information or

18

Highly Confidential-Attorneys’ Eyes Only Information shall be treated as such and

19

shall not be disclosed except under the terms of this Order.

20

15.

In the event that counsel for any party decides to file with or submit to

21

the Court any Confidential Information or Highly Confidential-Attorneys’ Eyes

22

Only Information, the Parties shall follow the rules and procedures of the pilot

23

program. See Dkt. # 67.

24

16.

Neither the provisions of this Confidentiality Order nor the filing of

25

any material under seal shall prevent use in the Litigation of any Confidential

26

Information, either in open court, at any hearing, or at trial, provided that the party

27

desiring to use the material gives the relevant producer reasonable advance notice

28

that the disclosing party is substantially likely to use the Confidential Information
10
[PROPOSED] CONFIDENTIALITY ORDER

1
2

in open court. There is no obligation to disclose the exact Confidential documents
likely to be used. Inclusion of any Confidential documents or other information in

3

any filing with the Court is a prima facie indication that it is substantially likely that

4

Confidential Information will be used in open court. As to these documents, no

5

other notice is required.

6
7
8
9

17.

Nothing herein shall impose any restriction on the use or disclosure by

a party of its own Information. Such disclosures shall not affect any Confidential
or Highly Confidential-Attorneys’ Eyes Only designation made under the terms of
this Confidentiality Order so long as the disclosure is made in a manner that is

10

reasonably calculated to maintain the confidentiality of the information. This

11

Confidentiality Order shall not prevent or otherwise restrict counsel from rendering

12

advice to their clients, and in the course thereof, relying on examination of stamped

13

Confidential Information. Nor shall this Confidentiality Order be construed to

14

prevent any party, its counsel, or its legal team from making use as they see fit of

15

information that was available to the public. Moreover, no party shall designate as

16

“Confidential” or “Highly Confidential-Attorneys’ Eyes Only” any document or

17

information which has previously been made publicly available. In the event,

18

however, that a non-party provides Information that was generated by a party to this

19

Confidentiality Order and that party believes that the Information is proprietary and

20

Confidential or Highly Confidential-Attorneys’ Eyes Only, the party may request

21

that all copies of such information be stamped with whatever designation the party

22

believes is appropriate within the provisions of this Order.

23

18.

This Confidentiality Order shall apply to all parties and to all non-

24

parties producing or receiving Confidential Information or Highly Confidential-

25

Attorney’s Eyes Only Information.

26

19.

Nothing in this Confidentiality Order shall be deemed to relieve a

27

party from producing documents or from making timely responses or objections to

28

discovery requests. Nothing in this Confidentiality Order shall be deemed a waiver
11
[PROPOSED] CONFIDENTIALITY ORDER

1
2

of any party’s rights to oppose production of any information, whether or not
confidential, upon proper grounds.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

20.

After the final resolution of the Litigation, including any appeals, a

Producing Party may request, in writing, the destruction or return of documents
subject to this Confidentiality Order that were not filed with the Court. The
recipient of such request shall have sixty days in which to return to documents,
destroy the documents or file a motion seeking an order upon which good cause
shown that the documents should not be destroyed or returned. Costs of destruction
of documents subject to this Confidentiality Order shall be borne by the party
requesting the destruction or return of documents.
21.

The Court shall retain jurisdiction subsequent to settlement or entry of

judgment to enforce the terms of this Confidentiality Order and to make such
amendments, modifications and additions to this Confidentiality Order as it may
from time to time deem appropriate upon good cause shown.
19th
December,
SIGNED AND ENTERED this ____ day of____________ 2013.

17
18
19

Honorable Patrick J. Walsh

20

United States Magistrate Judge

21
22
23
24
25
26
27
28
12
[PROPOSED] CONFIDENTIALITY ORDER

1
2
3

Exhibit A
ACKNOWLEDGMENT OF CONFIDENTIALITY ORDER
I hereby acknowledge that I will be receiving Confidential Information or

4

Highly Confidential-Attorneys’ Eyes Only Information pursuant to the terms of a

5

Confidentiality Order entered in the action entitled 13-03008 (RGK) (PJWx) on -

6

______. I have been given a copy of, and have read and understand the

7

Confidentiality Order and I agree to be bound by the terms and conditions of that

8

Order. I understand that: (i) I am to make no copies of any such Confidential

9

Information or Highly Confidential-Attorneys’ Eyes Only Information except as is

10

necessary for use in the above-referenced action; and (ii) such Confidential

11

Information or Highly Confidential-Attorneys’ Eyes Only Information and any

12

copies thereof are Confidential Information or Highly Confidential-Attorneys’ Eyes

13

Only Information to remain in my personal custody until I have completed my

14

assigned duties, whereupon they are to be returned to counsel who provided me

15

with such Confidential Information or Highly Confidential-Attorneys’ Eyes Only

16

Information. I agree not to disseminate any information derived from such

17
18
19
20
21

Confidential Information or Highly Confidential- Attorneys’ Eyes Only Information
to anyone, or make disclosure of any such information, except for the purposes of
the above-referenced proceedings or as permitted by the Confidentiality Order or by
further Order of the Court.
Signature ______________________

Date ________________

22
23

Print Name _____________________

24
25
26
27
28
13
[PROPOSED] CONFIDENTIALITY ORDER