Cobra Systems Inc v. Accuform Manufacturing Inc et al

Filing 48

PROTECTIVE ORDER by Magistrate Judge John E. McDermott 47 . (san)

1
2
3
4
5
6
7
8
9
10
11
12

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
JILL PIETRINI (Cal. Bar No. 138335)
[e-mail]
Sheppard Mullin Richter & Hampton LLP
1901 Avenue of the Stars, 16th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
MICHAEL MURPHY (Cal. Bar No. 234695)
[e-mail]
Sheppard Mullin Richter & Hampton LLP
12275 El Camino Real, Suite 200
San Diego, California 92130
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
COBRA SYSTEMS, INC.
IN THE UNITED STATES DISTRICT COURT

13

FOR THE CENTRAL DISTRICT OF CALIFORNIA

14

WESTERN DIVISION

15
16
17
18
19

COBRA SYSTEMS, INC., a
California corporation,
Plaintiff/Counter-defendant,
v.

21

[PROPOSED] JOINT STIPULATED
PROTECTIVE ORDER
Honorable John E. McDermott

ACCUFORM MANUFACTURING,
INC., a Florida corporation, and
DOES 1-10, inclusive

22

Case No. CV13-05932 ODW (JEMx)

Defendants/Counterclaimants.

20

23
24
25
26
27
28
[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)
SMRH:413915388.2

1

This Protective Order, entered under Federal Rule of Civil Procedure

2

26(c), shall govern the exchange of information designated “Confidential” or

3

“Attorneys Eyes Only.” Whether such disclosure is during the course of

4

investigation, discovery, or motions, by order of the Court, in response to questions

5

in a deposition, written interrogatories, requests for the production of documents

6

and other tangible things and responses, requests for admission and responses, or

7

any other discovery undertaken in this action. “Confidential” and “Attorneys Eyes

8

Only” information shall be used only for the purposes of this litigation and may not

9

be used by any party to which or whom that information is produced or disclosed

10

for any other purpose. Such information shall not be used in any other litigation or

11

proceeding.

12

1.

As used in this Order, the term “discovery material” includes all

13

information contained in documents, things, computer data and reports, deposition

14

testimony and exhibits, interrogatory answers, responses to requests for admission,

15

pleadings, motions, briefs, affidavits, and any other written, recorded, computerized

16

electronic, transcribed or graphic matter produced by any party or non party or

17

obtained by any party during discovery in this action, and any copies thereof. The

18

terms "document" or "documents" shall have the same meaning as used in the

19

Federal Rules of Civil Procedure including, but not limited to, records, exhibits,

20

reports, samples, transcripts, video or audio recordings, computer files, disks,

21

affidavits, briefs, pleadings, summaries, notes, abstracts, drawings, company

22

records and reports, answers to interrogatories, responses to requests for admissions

23

or document requests, and motions, including copies or computer-stored versions of

24

any of the foregoing, as well as anything meeting the definition of a "writing" as

25

used in Fed. R. Evid. 1001.

26
27

2.

“Producing Party” and “Designating Party” include any party or third

party who provides discovery material.

28
-1SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

3.

As used here, the designation "CONFIDENTIAL" means and applies

2

to: (a) any proprietary information, document, or thing produced in discovery

3

which is not generally known and which the producing party has not made public;

4

(b) data derived from such information, document or thing, including any

5

summaries, compilations, quotes, or paraphrases; and (c) information, including

6

identifying information, relating to third party customers/dealers of a party.

7
8

4.

Only “Qualified Persons” are authorized to view information

designated as “Confidential.” Qualified Persons are defined as:

9

(a) Attorneys of the law firms of record in this litigation and secretaries,

10

paralegals, law clerks and support staff employees to whom, in the opinion of the

11

attorney of record for the receiving party, it is necessary that the information be

12

disclosed for purposes of this litigation;

13

(b) Any person who is not an employee or business consultant of a party

14

and who is retained by a party or its attorneys of record in this litigation solely as an

15

independent expert for the purposes of this litigation and who agrees in writing to

16

be bound by the terms of this Protective Order.

17

“Confidential” or “Attorneys Eyes Only” information, the independent expert must

18

complete and sign a Confidentiality Statement in the form of Exhibit A, attached

19

hereto, and their identity must be disclosed as set forth in Paragraph 6.

Prior to receiving the

20

(c) Independent contractors of the law firms of record needed to provide

21

various services such as jury consulting, copying documents, drafting exhibits and

22

graphics, and preparing briefs or other court papers. Such agents, however, may

23

not include any person who is an officer, director, employee or agent of the

24

receiving party or fall in to any other category of this Paragraph 4.

25

(d) Three officers and/or employees from each party or a company

26

affiliated with the party designated specifically by each party, who agree, in

27

writing, to be bound by the terms of this Protective Order. Each person must

28
2
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

complete and sign a Confidentiality Statement in the form of Exhibit A, attached

2

hereto.

3
4

(e) Any other person who is designated as a Qualified Person by Order of

5

this Court, after notice to all parties, or who, by written agreement of the parties, is

6

designated as a Qualified Person. Any person designated under this subparagraph

7

(e) must complete and sign a Confidentiality Statement in the form of Exhibit A,

8

attached hereto.

9

(f) Court reporters, stenographers, clerks, law clerks, and other court

10

personnel employed by the Court, and court reporters and/or stenographers at

11

depositions.

12

5.

A Producing Party may designate as “ATTORNEYS EYES ONLY”

13

discovery materials that are: (a) any type of proprietary information, document, or

14

thing that is "Confidential" as defined above, and the disclosure of which the

15

producing party contends would cause substantial and/or irreparable harm to the

16

producing party's business operations or interests, or would divulge the personal

17

affairs of an employee from producing party; (b) data derived from such

18

information, including any summaries, compilations, quotes, or paraphrases; and

19

(c) any other oral, written, or recorded material which consists of or contains trade

20

secrets (as defined in California Civil Code § 3426.1(d) or any other applicable

21

law). Disclosure of “Attorneys Eyes Only” information is limited to the Qualified

22

Persons described in Paragraphs 4(a)-(c) and (e)-(f) of this Order.

23

6.

Before any person who is a consulting or potentially testifying expert

24

witness may be given access to information designated as “Confidential” or

25

“Attorneys Eyes Only” under Paragraph 4(b), the party seeking to provide such

26

access must give written notice to the attorneys for the Designating Party of the

27

intention to make such disclosure, providing the name, business address, and a

28

resume of the background and qualifications of the person to whom disclosure is
3
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

proposed. Within ten (10) days from the service of said notice, a Designating Party

2

having reasonable grounds to object to such disclosure may serve a written

3

objection, stating the reasons for the objection.

4

designated as “Confidential” or “Attorneys Eyes Only” to such person may occur

5

prior to the expiration of ten (10) days from the date of service of written notice of

6

intention to disclose unless consent is granted earlier by the Designating Party.

7

When a Designating Party objects to disclosure under this paragraph, the party

8

seeking to make the disclosure must move for leave of Court to make the disclosure

9

and may not make such disclosure without an order of the Court authorizing the

10

disclosure. In the event of an objection, the party objecting to disclosure shall bear

11

the burden to show that disclosure should not be allowed. The requirement of pre-

12

disclosure notice shall not apply to litigation consultants – such as trial consultants,

13

graphics firms, and the like – who are retained to support outside counsel.

14

7.

No disclosure of information

Any information designated as “Confidential” or “Attorneys Eyes

15

Only” shall not be: (1) made available, directly or indirectly or through

16

paraphrasing, by the party receiving it to any persons or entities other than

17

Qualified Persons, or (2) used by the other party for any purpose other than in

18

connection with this litigation.

19

8.

Any

Producing

Party

may

designate

discovery

material

as

20

“Confidential” or “Attorneys’ Eyes Only” by affixing in a conspicuous place the

21

legend “Confidential” or “Attorneys’ Eyes Only” on any discovery material that it

22

believes contains information specified in Paragraphs 3 and 5 above.

23

designation shall, to the extent possible, be made at the time the discovery materials

24

are produced. If, however, a Producing Party determines that discovery material

25

containing information specified in Paragraphs 3 and 5 above has inadvertently

26

been produced previously without a “Confidential” or “Attorneys’ Eyes Only”

27

designation, that Producing Party may so designate such information for going-

28

forward purposes by providing properly marked copies of the materials to all other
4
SMRH:413915388.2

Such

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

parties with instructions that such other parties shall either destroy or return all

2

copies of the previously produced but undesignated materials they may have.
9.

3

In lieu of marking the original of documents, the party may mark the

4

copies that are produced or exchanged, before or after an inspection of the originals

5

by the other party. The designation of material as “Confidential” or “Attorneys

6

Eyes Only” constitutes a representation by the Designating Party and its counsel

7

that they, in good faith, believe that the material so designated contains or

8

constitutes information which is properly the subject of this Protective Order.
10.

9

Information disclosed at a deposition may be designated as

10

“Confidential” or “Attorneys Eyes Only” by indicating: (1) on the record at the

11

deposition that the particular testimony should be designated as “Confidential” or

12

“Attorneys Eyes Only” and treated subject to the provisions of this Protective Order

13

or (2) by indicating in writing within fourteen (14) days of receipt of the transcript

14

by counsel that the particular testimony is designated as “Confidential” or

15

“Attorneys Eyes Only.” Until the fourteen (14) day period passes, the material is to

16

be treated as if designated “Attorneys Eyes Only.”
11.

17

Notwithstanding any other provision of this Protective Order, a party

18

may show any person any document or thing designated as “Confidential” or

19

“Attorneys Eyes Only” by the other party which that person: (i) has previously seen

20

or (ii) is entitled to see, in a manner which did not violate the terms of this

21

Protective Order.

22

12.

Furthermore, notwithstanding any other provision in this Protective

23

Order, a party may, in a deposition, show any director, officer, employee,

24

consultant or agent of the other party any document or thing produced by the other

25

party.

26
27

13.

Use of information designated “Confidential” or “Attorneys Eyes

Only” shall be permitted at trial, although the confidentiality of such information at

28
5
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

trial may be governed by a trial protective order if such an order is stipulated to by

2

the parties or requested by a party and entered by the Court.

3

14.

Nothing shall prevent disclosure beyond the terms of this Order if the

4

party designating the information as “Confidential” or “Attorneys Eyes Only”

5

consents, in writing, to such disclosure, withdraws the designation, or if the Court,

6

after notice to all parties, orders such disclosure.

7

15.

This Protective Order shall not apply to information that: (i) was, is, or

8

becomes public knowledge (not by any way of a violation of this Protective Order);

9

(ii) was or is acquired from a third party possessing such information and having no

10

obligation of confidentiality to the Designating Party; or (iii) the receiving party

11

establishes was already in its rightful and lawful possession at the time of the

12

disclosure.

13

16.

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

14

“Confidential” or “Attorneys Eyes Only” designation at the time made, and a

15

failure to do so shall not preclude a subsequent challenge to such designation. If

16

any party objects to a designation of discovery material as “Confidential” or

17

“Attorneys’ Eyes Only,” based upon a good faith belief that the discovery material

18

is not entitled to such protection, counsel for the objecting person shall state the

19

objection by letter to counsel for the Designating Party or nonparty. Upon receipt

20

of the letter containing such objection, counsel for the party that designated such

21

discovery material shall have ten (10) business days to confer with counsel for the

22

objecting party and respond to the request and objections. If, at the end of the ten-

23

day period, the objecting and designating parties are unable to agree on the

24

propriety of the objected-to designation(s), the objecting party may apply to the

25

Court for an order changing, removing, or reviewing the designation.

26

Designating Party shall have ten (10) business days to respond to such application

27

and shall have the burden of demonstrating that the designation was proper under

28

the terms of this Order.

Any discovery material that has been designated
6

SMRH:413915388.2

The

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

“Confidential” or “Attorneys’ Eyes Only” shall be treated as if properly designated

2

until such time as the Court rules that such discovery should not be so treated.

3

17.

In accordance with Local Rule 79-1, if any papers to be filed with the

4

Court contain information and/or documents that have been designated as

5

“Confidential” or “Attorneys Eyes Only,” the proposed filing shall be accompanied

6

by an application to file the papers or the portion thereof containing the designated

7

information or documents (if such portion is segregable) under seal; and the

8

application shall be directed to the judge to whom the papers are directed. For

9

motions, the parties shall publicly file a redacted version of the motion and

10
11

memorandum in support of the motion.
18.

All discovery and other material filed with the Court including, inter

12

alia, transcripts of depositions, exhibits, briefs and memoranda, which have been

13

designated “Confidential” or “Attorneys Eyes Only” shall be filed under seal in

14

accordance with the Court’s applicable Local Rules and Practices.

15

19.

Within sixty (60) days after the conclusion of this litigation, originals

16

or reproductions of any documents or things produced by a party containing

17

information designated as “Confidential” or “Attorneys Eyes Only” shall be

18

returned to the Producing Party or destroyed. Principal counsel for each party may

19

retain a single copy of all papers filed with the Court, exhibits, deposition

20

transcripts, discovery responses, work product, and correspondence.

21

20.

The designation of any material as “Confidential” or “Attorneys Eyes

22

Only” in accordance with this Order is intended solely to facilitate the preparation

23

and trial of this action, and treatment of such material by counsel of record for

24

named parties in conformity with such designation will not be construed in any way

25

as an admission or agreement by any party that the designated material constitutes

26

or contains any confidential or proprietary information.

27
28

21.

Inadvertent or unintentional production of documents or information

containing any privileged or otherwise protected information shall not be deemed a
7
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

waiver in whole or in part of any claim of privilege or protection, including but not

2

limited to the attorney-client privilege or work-product doctrine, provided that the

3

disclosing party promptly notifies the receiving party in writing when such

4

inadvertent production is discovered. Upon receiving written notice from the

5

disclosing party that privileged information or work-product material has been

6

inadvertently produced, all such information, and all copies thereof, shall be

7

returned to the disclosing party. Furthermore, any analyses, memoranda or notes

8

that were internally generated based upon such inadvertently produced information

9

or material shall immediately be treated in conformance with the protected nature

10

of the information. If the receiving party disagrees with the designation of any such

11

information or material as privileged or otherwise protected after conferring with

12

the disclosing party in good faith, the receiving party shall nonetheless return such

13

information or material to the disclosing party as specified above, but may move

14

the Court for production of the returned information or material. The disclosing

15

party shall retain all returned information or material for further disposition.

16

22.

This Order shall be without prejudice to the right of any person to

17

object to the production of any discovery material on the basis that such material is

18

protected as a privileged communication or work product.

19
20
21

23.

This Order shall be without prejudice to the right of any person to

apply to the Court for such further protective orders as justice may require.
24.

Nothing in this Order shall bar or otherwise restrict any counsel for a

22

party from rendering advice to his client with respect to this litigation and, in the

23

course thereof, relying upon his or her examination of materials designated

24

“Confidential” or “Attorneys Eyes Only” provided that no disclosure of the

25

substance of any such material shall be made except as (i) permitted herein to those

26

officers and/or employees designated in Paragraph 4(d), above, or (ii) if such

27

statement is a general conclusory statement indicating the nature and strength of the

28

proofs the other party (or any third party) has offered.
8
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

25.

This Protective Order has been entered to facilitate discovery and the

2

production of relevant evidence in this action. Neither the entry of this Order, nor

3

the designation of any material as “Confidential” or “Attorneys Eyes Only” nor the

4

failure to make such designation, shall constitute evidence with respect to any issue

5

in this action.

6

26.

This Protective Order shall remain in full force and effect throughout

7

this action and after its conclusion and until modified, superseded or terminated by

8

Order of the Court or by agreement of the parties.

9

IT IS SO STIPULATED.

10

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

11
12

Dated: January 3, 2014

13

By: /s/ Michael Murphy
Michael Murphy
Attorneys for Plaintiff/Counterclaimant
COBRA SYSTEMS, INC.

14
15
16

JACKSON JENKINS RENSTROM LLP

17
18

Dated: January 3, 2014

By: /s/ Stuart E. Supowit
Stuart E. Supowit

19

Attorneys for Defendant/Counter-Defendant
ACCUFORM MANUFACTURING, INC.

20
21

SIGNATURE ATTESTATION

22
23

I hereby attest that the content of this document is acceptable to all persons

24

whose signatures are indicated by a “conformed” signature (/s/) within this e-filed

25

document.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

26
27

Dated: January 3, 2014

By: /s/ Michael Murphy
Michael Murphy

28
9
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

1

PURSUANT TO STIPULATION, IT IS SO ORDERED:

2
3

Dated: January

4

/s/John E. McDermott______________
JOHN E. McDERMOTT
United States District Magistrate Judge

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)

EXHIBIT A

1
2

Confidentiality Statement

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

I, _________________________, state that:
1.

My address is ________________________________________.

2.

My present employer is ________________________________.

3.

My present occupation or job description is __________________.

4.

I have received a copy of the Protective Order governing the exchange

of information (“Protective Order”) in the matter entitled Cobra Systems, Inc. v.
Accuform Manufacturing, Inc., pending before the United States District Court for
the Central District of California, Case No. CV13-05932 ODW (JEMx).
5.

I have carefully read and understand the provisions of the Protective

Order. I will comply with all of the provisions, including holding in confidence and
not disclosing to anyone not qualified under the Protective Order, any document
designated as “Confidential” or “Attorneys Eyes Only,” or information contained in
such a document.
6.

I hereby consent to be subject to personal jurisdiction of the United

States District Court for the Central District of California in respect to any
proceeding relative to the enforcement of the Protective Order.
____________________________________
Signature

21
22
23

Date

24
25
26
27
28

11
SMRH:413915388.2

[Proposed] Joint Stipulated Protective Order
Case No. 13-cv-05932 ODW (JEMx)