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)

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