Derek Kirkendall v. Courtney Harris et al

Filing 23

STIPULATED ORDER RE: CONFIDENTIAL MATERIALS PROTECTIVE ORDER by Magistrate Judge Carla Woehrle RE Granting Joint Request for Protective Order for Production of Documents In Discovery. (21) (SEE ORDER FOR FURTHER DETAILS) (gr)

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Gordon E. Gray III (SBN 175209)
E-mail: [e-mail]
GRAY LAW FIRM
4401 N. Atlantic Ave., Suite 233
Long Beach, CA 90807
Telephone: [phone]

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Attorneys for Defendant

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DEREK KIRKENDALL, an Individual, )
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Plaintiff,
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vs.
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COURTNERY HARRIS dba
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EVOLUSION CONCEPTS, an
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Individual, and DOES 1 through 10,
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Defendants.
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Case No.: 13-CV-4258-JFW
Honorable Judge John F. Walter

STIPULATED ORDER RE:
CONFIDENTIAL MATERIALS

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Civil Case No. 13-CV-4258-JFW
STIPULATED ORDER RE: CONFIDENTIAL MATERIALS
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The Court recognizes that at least some of the documents and information

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(“materials”) being sought through discovery in the above-captioned action are, for

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competitive reasons, normally kept confidential by the parties and other third-parties

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who are subject to discovery in this action. The parties have agreed to be bound by

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the terms of this Protective Order (“Order”) in this action.

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The materials to be exchanged throughout the course of the litigation may

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contain trade secret or other confidential research, technical, cost, price, marketing or

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other commercial information, as is contemplated by Federal Rule of Civil Procedure

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26(c)(7). The purpose of this Order is to protect the confidentiality of such materials

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as much as practical during the litigation. THEREFORE:

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DEFINITIONS

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1.

The term “Confidential Information” shall mean and include

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information contained or disclosed in any materials, including documents, portions of

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documents, answers to interrogatories, responses to requests for admissions, trial

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testimony, deposition testimony, and transcripts of trial testimony and depositions,

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including data, summaries, and compilations derived there from that is deemed to be

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Confidential Information by any party or other person to which it belongs.

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The term “materials” shall include, but shall not be limited to:

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documents; correspondence; memoranda; bulletins; blueprints; specifications;

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customer lists or other material that identify customers or potential customers; price

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lists or schedules or other matter identifying pricing; minutes; telegrams; letters;

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statements; cancelled checks; contracts; invoices; drafts; books of account;

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worksheets; notes of conversations; desk diaries; appointment books; expense

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accounts; recordings; photographs; motion pictures; compilations from which

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information can be obtained and translated into reasonably usable form through

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detection devices; sketches; drawings; notes (including laboratory notebooks and

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records); reports; instructions; disclosures; other writings; models and prototypes and

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other physical objects.

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3.

The term “counsel” shall mean outside counsel of record in the above-

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captioned litigation, and, paralegals, secretaries, and other support staff employed in

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the law firms of record for the parties in the above-captioned litigation.

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4.

The term “party” shall include any third-party who produces or

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discloses any materials or testimony in discovery such that the third-party may

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designate and protect material and testimony from that third-party.

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GENERAL RULES

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5.

Each party to this litigation or other third-party (collectively “party”,

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“producing party” or “designating party”) that produces or discloses any materials,

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answers to interrogatories, responses to requests for admission, trial testimony,

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deposition testimony, and transcripts of trial testimony and depositions, or

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information that the producing party believes should be subject to this Protective

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Order may designate the same as “CONFIDENTIAL” or “CONFIDENTIAL – FOR

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COUNSEL ONLY.”

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a. Designation as “CONFIDENTIAL”: Any party may designate

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information as “CONFIDENTIAL” only if, in the good faith belief

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of such party and its counsel, the unrestricted disclosure of such

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information could be potentially prejudicial to the business or

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operations of such party.

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b. Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any

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party may designate information as “CONFIDENTIAL - FOR

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COUNSEL ONLY” only if, in the good faith belief of such party

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and its counsel, the information is among that considered to be most

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sensitive by the party, including but not limited to trade secret or

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other confidential research, development, financial or other

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commercial information.

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In the event the producing party elects to produce materials for

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inspection, no marking need be made by the producing party in advance of the initial

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inspection. For purposes of the initial inspection, all materials produced shall be

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considered as “CONFIDENTIAL - FOR COUNSEL ONLY,” and shall be treated as

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such pursuant to the terms of this Order. Thereafter, upon selection of specified

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materials for copying by the inspecting party, the producing party shall, within a

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reasonable time prior to producing those materials to the inspecting party, mark the

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copies of those materials that contain Confidential Information with the appropriate

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confidentiality marking.

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Whenever a deposition taken on behalf of any party involves a

disclosure of Confidential Information:
a. said deposition or portions thereof shall be designated as containing

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Confidential Information subject to the provisions of this Order; such

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designation shall be made on the record whenever possible, but a

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party may designate portions of depositions as containing

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Confidential Information after transcription of the proceedings; a

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party shall have until fifteen (15) days after receipt of the deposition

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transcript to inform the other party or parties to the action of the

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portions of the transcript designated “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY;”

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b. the disclosing party shall have the right to exclude from attendance

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at said deposition, during such time as the Confidential Information

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is to be disclosed, any person other than the deponent, counsel

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(including their staff and associates), the court reporter, and the

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person(s) agreed upon pursuant to paragraph 8 below; and

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c. the originals of said deposition transcripts and all copies thereof

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shall bear the legend “CONFIDENTIAL” or “CONFIDENTIAL -

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FOR COUNSEL ONLY,” as appropriate, and the original or any

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copy ultimately presented to a court for filing shall not be filed

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unless it can be accomplished under seal, identified as being subject

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to this Order, and protected from being opened except by order of

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this Court.

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All Confidential Information designated as “CONFIDENTIAL” or

“CONFIDENTIAL -FOR COUNSEL ONLY” shall not be disclosed by the receiving

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party to anyone other than those persons designated herein and shall be handled in

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the manner set forth below and, in any event, shall not be used for any purpose other

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than in connection with this litigation, unless and until such designation is removed

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either by agreement of the parties, or by order of the Court. All material designated

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“CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY” may be

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disclosed to the Court in this proceeding and the Court’s clerical or other staff

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working under the Court’s supervision, and any jury empanelled at trial in this

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action.

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Information designated “CONFIDENTIAL - FOR COUNSEL ONLY”

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shall be viewed only by counsel (as defined in paragraph 3) of the receiving party,

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and by approved independent experts under the conditions set forth in this Paragraph.

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The right of any approved independent expert to receive any Confidential

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Information shall be subject to the advanced approval of such expert by the

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producing party or by permission of the Court. The party seeking approval of an

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independent expert shall provide the producing party with the name and curriculum

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vitae of the proposed independent expert, and an executed copy of the form attached

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hereto as Exhibit 1, in advance of providing any Confidential Information of the

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producing party to the expert. Any objection by the producing party to an

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independent expert receiving Confidential Information must be made in writing

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within fourteen (14) days following receipt of the identification of the proposed

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expert. Confidential Information may be disclosed to an independent expert if the

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fourteen (14) day period has passed and no objection has been made. The approval of

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independent experts shall not be unreasonably withheld.

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Information designated “CONFIDENTIAL” shall be viewed only by

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counsel (as defined in paragraph 3) of the receiving party, by approved independent

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experts (pursuant to the terms of paragraph 9), and by the additional individuals listed

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below, provided each such individual has read this Order in advance of disclosure

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and has agreed in writing to be bound by its terms:
a. Executives who are required to participate in policy decisions with

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reference to this action;

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b. Technical personnel employed by the parties with whom Counsel for

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the parties find it necessary to consult, in the discretion of such

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counsel, in preparation for trial of this action;

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c. Stenographic and clerical employees associated with the individuals

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identified above; and

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d. any person indicated on the face of the document to be its originator,

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author or a recipient of a copy thereof, persons identified in

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Paragraph 9 of this document, or any Rule 30(b)(6) witness of the

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party that produced the material

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All information which has been designated as “CONFIDENTIAL -FOR

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COUNSEL ONLY” by the producing or disclosing party, and any and all

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reproductions thereof, shall be retained in the custody of the counsel for the receiving

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party identified in paragraph 3, except that approved independent experts authorized

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to view such information under the terms of this Order may retain custody of copies

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such as are necessary for their participation in this litigation.

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Before any materials produced in discovery, answers to interrogatories,

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responses to requests for admissions, deposition transcripts, or other documents

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which are designated as Confidential Information are filed with the Court for any

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purpose, the party seeking to file such material shall seek permission of the Court to

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file said material under seal.

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13.

At any stage of these proceedings, any party may object to a designation

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of the materials as Confidential Information. The party objecting to confidentiality

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shall notify, in writing, counsel for the designating party of the objected-to materials

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and the grounds for the objection. If the dispute is not resolved consensually between

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the parties within seven (7) business days of receipt of such a notice of objections, the

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objecting party may move the Court, in accordance with the Local Rules, for a ruling

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on the objection and the objecting party bears the burden of proof with regard to the

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objection to the confidential designation. The materials at issue shall be treated as

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Confidential Information and as designated by the designating party until the Court

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has ruled on the objection or the matter has been otherwise resolved.

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All Confidential Information shall be held in confidence by those

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inspecting or receiving it, and shall be used only for purposes of this action. Counsel

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of record for each party, and each person receiving Confidential Information shall

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take reasonable precautions to prevent the unauthorized or inadvertent disclosure of

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such information. If Confidential Information is disclosed to any person other than a

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person authorized by this Order, the party responsible for the unauthorized disclosure

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must immediately bring all pertinent facts relating to the unauthorized disclosure to

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the attention of the other parties and, without prejudice to any rights and remedies of

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the other parties, make every effort to prevent further disclosure by the party and by

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the person(s) receiving the unauthorized disclosure.

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No party shall be responsible to another party for disclosure of

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Confidential Information under this Order if the information in question is not

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labeled or otherwise identified as such in accordance with this Order.

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If a party, through inadvertence, produces any Confidential Information

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without labeling or marking or otherwise designating it as such in accordance with

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this Order, the designating party may give written notice to the receiving party that

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the document or thing produced is deemed Confidential Information, and that the

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document or thing produced should be treated as such in accordance with that

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designation under this Order. The receiving party must treat the materials as

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Confidential Information, once the designating party so notifies the receiving party. If

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the receiving party has disclosed the materials before receiving the designation, the

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receiving party must notify the designating party in writing of each such disclosure.

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Counsel for the parties shall agree on a mutually acceptable manner of labeling or

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marking the inadvertently produced materials as “CONFIDENTIAL” or

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“CONFIDENTIAL - FOR COUNSEL ONLY” - SUBJECT TO PROTECTIVE

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ORDER.

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Nothing herein shall prejudice the right of any party to object to the

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production of any discovery material on the grounds that the material is protected as

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attorney-client communication or as attorney work product.

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18.

Nothing in this Order shall bar counsel from rendering advice to their

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clients with respect to this litigation and, in the course thereof, relying upon any

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information designated as Confidential Information, provided that the contents of the

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information shall not be disclosed.

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This Order shall be without prejudice to the right of any party to oppose

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production of any information for lack of relevance or any other ground other than

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the mere presence of Confidential Information. The existence of this Order shall not

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be used by either party as a basis for discovery that is otherwise improper under the

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Federal Rules of Civil Procedure.

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Nothing herein shall be construed to prevent disclosure of Confidential

Information if such disclosure is required by law or by order of the Court.
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Upon final termination of this action, including any and all appeals,

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counsel for each party shall, upon request of the producing party, return all

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Confidential Information to the party that produced the information, including any

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copies, excerpts, and summaries thereof, or shall destroy same at the option of the

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receiving party, and shall purge all such information from all machine-readable

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media on which it resides. Notwithstanding the foregoing, counsel for each party may

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retain all pleadings, briefs, memoranda, motions, and other documents filed with the

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Court that refer to or incorporate Confidential Information, and will continue to be

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bound by this Order with respect to all such retained information. Further, attorney

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work product materials that contain Confidential Information need not be destroyed,

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but, if they are not destroyed, the person in possession of the attorney work product

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will continue to be bound by this Order with respect to all such retained information.

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The restrictions and obligations set forth herein shall not apply to any

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information that: (a) the parties agree should not be designated Confidential

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Information; (b) the parties agree, or the Court rules, is already public knowledge; (c)

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the parties agree, or the Court rules, has become public knowledge other than as a

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result of disclosure by the receiving party, its employees, or its agents in violation of

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this Order; or (d) has come or shall come into the receiving party’s legitimate

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knowledge independently of the production by the designating party. Prior

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knowledge must be established by pre-production documentation.

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The restrictions and obligations herein shall not be deemed to prohibit

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discussions of any Confidential Information with anyone if that person already has or

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obtains legitimate possession thereof.

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purposes herein.

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Transmission by facsimile and/or e-mail is acceptable for all notification
This Order may be modified by agreement of the parties, subject to

approval by the Court.

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IT IS SO ORDERED this __7TH_____ day of _November_______, 2013

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CARLA M. WOEHRLE
U.S. MAGISTRATE JUDGE

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Civil Case No. 13-CV-4258-JFW
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DEREK KIRKENDALL, an
Individual,

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) Civil Case No. 13-CV-4258-JFW
)

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)

Plaintiff,

) AGREEMENT TO BE BOUND BY
PROTECTIVE ORDER
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vs.
COURTNERY HARRIS dba
EVOLUSION CONCEPTS, an
Individual, and DOES 1 through 10,
Defendants.

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)

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I, __________________________________, declare and say that:
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STIPULATION RE: ORDER GOVERNING DESIGNATION AND
HANDLING OF CONFIDENTIAL MATERIALS

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I am employed as

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______________________________________________ by

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__________________________________________________________________

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____.
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I have read the Protective Order entered in the above captioned

action, and have received a copy of the Protective Order.
3.

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I promise that I will use any and all “Confidential” or “Confidential -

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For Counsel Only” information, as defined in the Protective Order, given to me

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only in a manner authorized by the Protective Order, and only to assist counsel in

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the litigation of this matter.
4.

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I promise that I will not disclose or discuss such “Confidential” or

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“Confidential – For Counsel Only” information with anyone other than the persons

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described in paragraphs 3, 8 and 9 of the Protective Order.
5.

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I acknowledge that, by signing this agreement, I am subjecting myself

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to the jurisdiction of the United States District Court for the Central District of

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California with respect to enforcement of the Protective Order.

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I understand that any disclosure or use of “Confidential” or

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“Confidential – For Counsel Only” information in any manner contrary to the

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provisions of the Protective Order may subject me to sanctions for contempt of

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court.

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I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct.

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Date:
Print Name:

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STIPULATION RE: ORDER GOVERNING DESIGNATION AND
HANDLING OF CONFIDENTIAL MATERIALS

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STIPULATION RE: ORDER GOVERNING DESIGNATION AND
HANDLING OF CONFIDENTIAL MATERIALS