John D Thomson v. HMC Group et al

Filing 86

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton. In re: Notice of Lodging 85 . SEE DOCUMENT FOR FURTHER DETAILS. (mkr)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 JOHN D. THOMSON, an individual Plaintiff, 13 14 15 16 17 vs. HMC GROUP, a California Corporation, TORRANCE MEMORIAL MEDICAL CENTER, a California Corporation, and DOES 1 through 20, inclusive. Case No: CV 13-03273 DMG (VBKx) [Assigned to District Judge Dolly M. Gee] STIPULATION FOR ENTRY OF PROTECTIVE ORDER Complaint filed: May 8, 2013 18 19 Defendants. 20 21 22 23 24 25 26 27 28 1 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 1. PURPOSES AND LIMITATIONS 2 THE DISCOVERY, PRE-TRIAL AND TRIAL PHASES of this action will 3 involve disclosure of trade secrets and other confidential and proprietary business, 4 technical, and financial information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this matter would 6 be warranted. The parties hereby stipulate to and petition the Court to enter the 7 following order under Federal Rule of Civil Procedure 26(c). 8 acknowledge that this Order does not confer blanket protections on all disclosures 9 or responses to discovery and that the protection it affords extends only to the 10 limited information or items that are entitled under the applicable legal principles 11 to treatment as confidential. 12 Protective Order shall also apply to any future voluntary disclosures of 13 confidential, proprietary, or private information. The parties reserve their rights to 14 object to or withhold any information, including confidential, proprietary, or 15 private information, on any other applicable grounds permitted by law, including 16 third-party rights and relevancy. 17 18 The parties The parties have agreed that the terms of this 2. DEFINITIONS 2.1. Document: shall be defined to mean any printed, typewritten, 19 electronic, handwritten, digitally recorded or otherwise recorded material, 20 including but not limited to, interrogatory answers, responses to requests for 21 admission, pleadings, motions, briefs, affidavits, declarations, testimony, including 22 deposition testimony, agreements, contracts, letters, memoranda, notes, agenda, 23 minutes, records, resolutions, calendars, ledgers, reports, analysis, presentations, 24 articles, photographs, spreadsheets, lists, manuals, electronic mail messages, 25 databases, software, audiotape, videotape and film. 26 2.2. Confidential Information: information (regardless of how 27 generated, stored, or maintained) or tangible things that qualify for protection 28 under standards developed under Fed. R. Civ. P. 26(c). 1 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 2.3 2 such material as consists of: 3 Attorney Eyes’ Only: discovery material or such portion of (a) any commercially sensitive and/or confidential business 4 or financial information (including without limitation confidential nonpublic 5 contracts, profitability reports or estimates, sales reports, and sales margins) which 6 could reasonably create a competitive disadvantage if disclosed to the parties in 7 this action; 8 9 10 (b) any business or financial information that is confidential, proprietary, or commercially sensitive to third parties who have had business dealings with parties to this action; or 11 (c) any other category of material or information hereinafter 12 given CONFIDENTIAL status by the Court, to the extent said material could 13 reasonably create a competitive disadvantage if disclosed to the parties in this 14 action or to third parties. 15 16 17 18 19 2.4 Receiving Party: a Party that receives disclosure or discovery material from a Producing Party. 2.5 Producing Party: a Party or non-party that produces disclosure or discovery material in this action. 2.6 Designating Party: a Party or non-party that designates 20 information or items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 22 2.7 Protected Material: any disclosure or discovery material that is 23 designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 24 3. DESIGNATING PROTECTED MATERIAL 25 3.1 Protected Material. Any party, non-party or witness may 26 designate as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES 27 ONLY” according to the procedures described in paragraphs 3, any Documents, 28 information or testimony that contains, or which could lead to the disclosure of, 2 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 sensitive proprietary information, confidential business information, or confidential 2 commercial 3 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES ONLY” shall be 4 subject to the provisions of this Protective Order. 5 information. 3.2 All Confidential Information designated as Designation. If the Designating Party claims that any 6 Confidential Information is confidential or contains confidential information, then 7 the Designating Party shall mark the document with a stamp, notation or other 8 appropriate means identifying it as: “CONFIDENTIAL – SUBJECT TO 9 PROTECTIVE ORDER” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – 10 11 SUBJECT TO PROTECTIVE ORDER.” 3.3 Designating Deposition Testimony. A Designating Party may 12 designate all or any portion of a deposition as confidential during or within ten (10) 13 business days following delivery of a draft or final deposition transcript. If the 14 designation is made during the deposition, the court reporter of the deposition 15 containing such designated material shall transcribe separately testimony so 16 designated and shall stamp or mark that testimony “CONFIDENTIAL – SUBJECT 17 TO PROTECTIVE ORDER” or “CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY – SUBJECT TO PROTECTIVE ORDER.” It shall not be necessary to 19 designate specific testimony as confidential during the course of the deposition. All 20 deposition transcripts, draft or final, shall be maintained as Confidential-Attorneys’ 21 Eyes Only for ten (10) business days following delivery of a draft or final 22 deposition transcript by the stenographic reporter, to permit the parties to make any 23 Confidential or Confidential-Attorneys’ Eyes only designations. During this 24 period, the Designating Party shall designate specific portions of the transcript and 25 any exhibits as confidential and shall give written notice to opposing counsel of the 26 specific portions of transcripts and specific exhibits which have been designated as 27 confidential. Only such designated portions and exhibits shall be Confidential or 28 Confidential-Attorneys’ Eyes Only. During and after the deposition, until the 3 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 expiration of the above-described 10-day period, the entire transcript and any 2 information derived therefrom may be disclosed only pursuant to the terms of this 3 Protective Order. 4 4. SCOPE 5 The Protected Material subject to this Protective Order, and any and all 6 knowledge or information derived therefrom, shall not be used by any party, 7 expert, consultant, deponent or other non-Designating Party person or entity to 8 whom such documents or materials are disclosed, for any business, commercial, 9 media, or competitive purpose or for any other purpose whatsoever, other than 10 preparation for trial, trial, and/or settlement of this action. 11 conferred by this Stipulation and Order cover not only Protected Material 12 referenced above, but also any information copied or extracted therefrom, as well 13 as all copies, excerpts, summaries, or compilations thereof, plus testimony, 14 conversations, or presentations by parties or counsel to or in litigation or in other 15 settings that might reveal Protected Material. 16 17 18 19 20 21 22 23 24 The protections 5. FILING CONFIDENTIAL INFORMATION If Protected Material is filed with the Court, it shall be filed under seal in accordance with L.R. 79-5.1 and marked substantially as follows: CONFIDENTIAL AND SUBJECT TO PROTECTIVE ORDER. IN ACCORDANCE WITH THE PROTECTIVE ORDER, THE ENCLOSURE(S) SHALL BE TREATED AS CONFIDENTIAL AND SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN THOSE PERSONS DESIGNATED IN PARAGRAPH 8 OF THE PROTECTIVE ORDER. 25 26 Such Protected Material shall be opened only by the Court or by personnel 27 authorized to do so by the Court. Any pleading, motion, brief, memorandum, or 28 other filing with the Court that includes any discussion or analysis of, quotation 4 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 from, or substantive reference to any Protected Material shall be filed, together 2 with an application for filing under seal in accordance with L.R. 79-5.1, and 3 marked with the language specified in paragraph 6, above. 4 6. DISCLOSURE OF CONFIDENTIAL INFORMATION 5 Unless otherwise ordered by the Court, Confidential Information, including 6 all information derived therefrom, but excluding documents marked “Confidential- 7 Attorneys’ Eyes Only – Subject to Protective Order” and all information derived 8 therefrom, shall be restricted solely to the following persons, who are bound by the 9 terms of this Protective Order, unless additional persons are agreed upon and 10 stipulated to in writing by counsel or authorized by the Court: 11 a. Outside or in-house counsel for any party to the above- 12 captioned litigation, including all employees of said counsel’s law department or 13 law firm involved in the prosecution or defense of the above-entitled case, such as 14 (without limitation) permanent and temporary attorneys, contract attorneys, 15 paralegal assistants, stenographic, and clerical employees; 16 b. Those persons retained by any party herein for the purpose of 17 furnishing consulting services (such as non-retained experts) and/or for giving 18 expert testimony in this matter. Before disclosing any Confidential Information of 19 another Designating Party to any expert or consultant retained by any party herein 20 (the “Retaining Party”), the Retaining Party’s attorney shall show any such expert 21 or consultant a copy of this Protective Order. The expert or consultant shall sign 22 the declaration, attached hereto as Appendix A (the “Declaration”), agreeing to be 23 bound by and to its terms. The Retaining Party shall maintain all signed, original 24 declarations. 25 c. Party employees or officers whose job responsibilities relate 26 directly to the matters at issue in the above-entitled action and whose review of the 27 Confidential Information is necessary and proper to assist the party in preparation 28 for trial, trial, and/or settlement of this action and who are bound by internal 5 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 confidentiality obligations as party of their employment or who have signed the 2 declaration, attached hereto as Appendix A; and d. 3 This Court and its personnel including, but not limited to, 4 stenographic reporters regularly employed by the Court and stenographic reporters 5 not regularly employed by the Court who are engaged by the Court during this 6 litigation. e. 7 8 The author and recipients of the document or the original source of the information. 9 7. DISCLOSURE OF ATTORNEYS’ EYES ONLY 10 INFORMATION 11 Confidential Information that contains highly sensitive proprietary, 12 financial, or trade secret information, such as technical data, future marketing 13 plans, customer lists, customer information, costs, future products, and profit 14 information, or other such material that would cause competitive damage if it were 15 to be disclosed to another party, may be marked as “CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY – SUBJECT TO PROTECTIVE ORDER.” Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 receiving 19 “CONFIDENTIAL 20 PROTECTIVE ORDER” only to the persons identified in sections 6(a), (b), (d) 21 and (e) above, subject to the requirements and conditions in those sections. An 22 expert shall not attach any Confidential Information designated under this section 23 to any report nor reproduce the Confidential Information in whole or in part within 24 any report unless such report is submitted under seal. 25 party may – disclose any ATTORNEYS’ information EYES or ONLY item – designated SUBJECT TO 8. STORAGE OF PROTECTED MATERIALS 26 Each party shall take reasonable measures in storing Protected Materials to 27 limit access to those persons who are authorized under the terms of this Protective 28 Order to inspect, review, or receive such Protected Material and any documents 6 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 2 containing said Protected Material. 9. EXCLUSIONS 3 Whenever Protected Material is to be disclosed in a deposition or other 4 hearing or proceeding, any party claiming that the information is confidential may 5 exclude from the room any person, other than persons designated in paragraphs 6 6 and 7 of this Protective Order, and in the case of Confidential-Attorneys’ Eyes 7 Only information, any person other than counsel, the deponent, and court and 8 video reporters may be excluded, for that portion of said deposition, hearing or 9 proceeding. The failure of the person to comply with a request of exclusion shall 10 constitute substantial justification for counsel to instruct the witness not to answer 11 the question. Nothing in this Protective Order shall limit any party from 12 introducing Protected Material into evidence at trial, subject to the introducing 13 party informing the Designating Party of its intent to do so and subject to the 14 Designating Party’s right to seek further protection from the Court. 15 10. MODIFICATION 16 Any party may apply to the Court, for good cause, at any time for an order 17 modifying the terms of this Protective Order. Conversely, any party may apply to 18 the Court for a supplementary protective order. 19 11. RETURN OF PROTECTED MATERIAL 20 Upon request, within thirty (30) business days after (1) the entry of a final 21 judgment no longer subject to appeal on the merits of this case or (2) settlement of 22 the claims between the parties, each party herein shall return to the producing party 23 all produced Documents, and copies thereof, that have been designated 24 confidential, or shall certify that all such Documents and copies have been 25 destroyed, or such other procedure agreed upon by the party’s counsel. 26 12. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 Each party herein reserves the right to dispute the confidential status claimed 28 by any other party in accordance with this Protective Order, and a failure to do so 7 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 shall not preclude a subsequent challenge to such designation, which may be made 2 at any stage of this proceeding. An untimely designation of Confidential 3 Information by a Designating Party shall not require any other party to take any 4 special action, including, without limitation, recalling the information from third 5 parties. Nor shall the possession of untimely designated Confidential Information 6 or Attorneys’ Eyes Only information by third parties constitute a violation of this 7 Protective Order, provided the information was already in the possession of those 8 third parties before it was designated Confidential Information or Attorneys’ Eyes 9 Only information. If any party believes that any Confidential or Attorneys’ Eyes 10 Only information has been designated inappropriately by another party or witness, 11 the party shall, in writing, inform counsel for the party claiming confidentiality. If 12 the party claiming confidentiality does not agree to re-designate the Confidential 13 Information or Attorneys’ Eyes Only information as non-confidential within ten 14 (10) business days of receipt of the writing from opposing counsel, the party 15 challenging the designation may file an appropriate motion before the Court that 16 complies with L.R. 37. This Protective Order shall apply to the disputed 17 Confidential Information until the motion is decided. 18 13. INADVERTENT DISCLOSURES 19 The inadvertent production of any Confidential Information lacking the 20 physical designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE 21 ORDER” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY – SUBJECT TO 22 PROTECTIVE ORDER” shall be without prejudice to any subsequent claim that 23 such material is confidential, and no party shall be held to have waived any rights 24 by such inadvertent production, including the party’s rights under Rule 26(c) of the 25 Federal Rules of Civil Procedure. Upon written demand of the producing party or 26 non-party, all copies of any Confidential Information lacking the physical 27 designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or 28 “CONFIDENTIAL – ATTORNEY’S EYES 8 ONLY – SUBJECT TO USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 PROTECTIVE ORDER” shall be returned immediately to the producing party. 2 The producing party then will supply to each of the other parties a copy of the 3 Confidential Information properly designated “CONFIDENTIAL – SUBJECT TO 4 PROTECTIVE ORDER” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY – 5 SUBJECT TO PROTECTIVE ORDER.” 6 7 14. INADVERTENT PRODUCTION OF PRIVILEGED DOCUMENTS 8 The inadvertent production of any privileged Document or any Document 9 protected from discovery by the work product doctrine shall be without prejudice 10 to any subsequent claim that such Document is privileged or protected from 11 discovery by the work product doctrine, and no party shall be held to have waived 12 any rights by such inadvertent production. Upon written demand of the producing 13 party or non-party, all copies of the inadvertently produced Document shall be 14 returned to the producing party. 15 15. MISCELLANEOUS 16 15.1 Disclosure of Party’s Own Protected Material. Nothing in this 17 Protective Order restricts any party from using or disclosing its own Confidential 18 Information for any purpose. This Protective Order also does not apply to 19 information that was lawfully in the possession of a third party or in the public 20 domain before the date of entry of this Protective Order. 21 15.1 Subpoena. In the event any person or party having possession, 22 custody, or control or knowledge of any materials designated under this Protective 23 Order receives a subpoena or other process or order directed to such materials, 24 such person or party shall promptly notify, by email, counsel for the party who 25 produced the confidential information sought by such subpoena or other process or 26 order; shall furnish that counsel with a copy of the subpoena or other process or 27 order; and shall cooperate reasonably with respect to any procedure sought to be 28 pursued by the producing party whose interests may be affected. The person or 9 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 party receiving the subpoena or other process or order shall be entitled to comply 2 with it, except to the extent the Designating Party is successful in obtaining from a 3 court of competent jurisdiction an order modifying or quashing it. 4 15.2 Duration. This Order shall govern the production and 5 disclosure of all Protected Material produced or disclosed in this case, both before 6 and after the entry of this Order. The provisions of this Protective Order shall 7 continue to be binding after the conclusion of this litigation, except that any party 8 may seek the written permission of the Designating Party or further order of the 9 Court with respect to dissolution or modification of the Protective Order. 10 15.3 Jurisdiction. This Court shall have continuing jurisdiction to 11 enforce the provisions of this Protective Order. The parties agree that disclosure or 12 use inconsistent with the terms of this Protective Order of any Protected Material 13 would give rise to irreparable injury to the disclosing party. 14 SO STIPULATED AND AGREED. 15 16 Dated: March 2, 2015 FOLEY BEZEK BEHLE & CURTIS, LLP 17 By: /s/ Roger N. Behle, Jr. Roger N. Behle, Jr. Justin P. Karczag Kevin D Gamarnik Attorneys for Plaintiff John D. Thomson 18 19 20 21 22 23 24 25 26 27 Dated: March 2, 2015 GORDON & REES LLP By: /s/ Richard P. Sybert Richard P. Sybert Holly L.K. Heffner Justin H. Aida Attorneys for Defendant Torrance Memorial Medical Center 28 10 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 Dated: March 2, 2015 COLLINS COLLINS MUIR + STEWART LLP 2 3 By: /s/ James C. Jardin Michele L. Gamble James C. Jardin Attorneys for Defendant HMC Architects 4 5 6 7 PURSUANT TO STIPULATION, IT IS SO ORDERED. 8 9 10 11 DATED: March 5, 2015 __________________/s/_____________________ Hon. Victor B. Kenton United States Magistrates Judg 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER 1 APPENDIX A 2 3 4 I, _______________________________________state that: 5 1. 6 7 My address is_____________________________________________ __________________________________________________________________. 2. I have received a copy of the Protective Order in THOMSON v. HMC 8 GROUP, et al., CV 13-03273 DMG (VBKx), before the United States District 9 Court for the Central District of California. 10 3. I have carefully read and understand the provisions of the Protective 11 Order. My staff and I will comply with all of its provisions, including (a) holding 12 in confidence and not disclosing to anyone not qualified under the Protective 13 Order, any information designated “Confidential Information” or “Confidential 14 Information — Attorney’s Eyes Only,” or any words, substances, summaries, 15 abstracts, or indices of such information, or copies thereof, or knowledge deriving 16 therefrom, which come into my possession and documents or things which I have 17 prepared relating thereto, except to counsel for the party by whom I am retained, 18 and (b) using the foregoing solely for purposes of this proceeding, and not for any 19 present or future business, competitive, or governmental purpose or function. I 20 agree to return all copies of Confidential Information to the attorney from whom I 21 received it, within ten business days of receipt. 22 4. I hereby consent to be subject to personal jurisdiction of the United 23 States District Court for the Central District of California and any appellate court 24 involved in this proceeding in respect to any proceeding relating to the 25 enforcement of the Protective Order, including any proceedings relating to 26 contempt of Court. 27 28 Date ______________ By ______________________________________ 1088881/22387018v.1 1 USDC CASE NO.: CV 13-03273 DMG (VBKx) STIPULATION FOR ENTRY OF PROTECTIVE ORDER

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