Material Handling Supply, Inc. v. Unicarriers Americas Corporation et al

Filing 49

PROTECTIVE ORDER by Magistrate Judge Victor B. Kenton. (SEE DOCUMENT FOR DETAILS). In re: Joint APPLICATION for Protective Order 46 , and Order on Application for Protective Order 48 . (mkr)

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MLG AUTOMOTIVE LAW, APLC
A Professional Law Corporation
Jonathan A. Michaels, Esq. – State Bar No. 180455
Kathryn J. Harvey, Esq. – State Bar No. 241029
Kianna C. Parviz, Esq. – State Bar No. 293568
2801 W. Coast Highway, Suite 370
Newport Beach, CA 92663
Telephone: [phone]
Facsimile: [phone]
([e-mail])
(kharvey@ mlgautomotivelaw.com)
(kparviz@ mlgautomotivelaw.com)
Attorneys for Plaintiff,
Material Handling Supply, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MATERIAL HANDLING SUPPLY,
INC., a California corporation,

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Plaintiff,

[PROPOSED] STIPULATED
PROTECTIVE ORDER

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Case No: 2:14-cv-01973-FMO-VBK
Judge: Fernando M. Olguin

vs.

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UNICARRIERS AMERICAS
CORPORATION, an Illinois
corporation; SELECT EQUIPMENT
SALES, INC., a California
corporation; and DOES 1 through 25,
inclusive,

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Action Removed:

March 14, 2014

Trial Date:

October 27, 2015

Defendants.

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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Plaintiff Material Handling Supply (“Plaintiff”) and Defendant

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Unicarriers Americas Corporation (“Defendant”) through their undersigned

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counsel, stipulate as follows:

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court

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to enter the following Stipulated Protective Order. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 13.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal. Instead, Civil Local Rule 79-5 sets

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forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the Court to file material under seal.

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2.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets and other valuable research,

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development, commercial, financial, technical and/or proprietary information for

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which special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted.

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proprietary materials and information consist of, among other things, confidential

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business or financial information, information regarding confidential business

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practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties), information
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

Such confidential and

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otherwise generally unavailable to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules,

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case decisions, or common law. Accordingly, to expedite the flow of information,

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to facilitate the prompt resolution of disputes over confidentiality of discovery

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materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of

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such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective

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order for such information is justified in this matter. It is the intent of the parties

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that information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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3.

DEFINITIONS

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3.1

Action: This pending federal law suit.

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3.2

Challenging Party: A Party or Non-Party that challenges the

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designation of information or items under this Order.
3.3

“CONFIDENTIAL” Information or Items: Information (regardless

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of how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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3.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
3.5

Designating Party: A Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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3.6

Disclosure or Discovery Material:

All items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that

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are produced or generated in disclosures or responses to discovery in this matter.

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3.7

Expert: A person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this Action.

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3.8

“HIGHLY CONFIDENTIAL” Information or Items: Extremely

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sensitive “CONFIDENTIAL” information or items whose disclosure to another

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Party or Non-Party would create a substantial risk of serious injury that could not

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be avoided by less restrictive means. This definition includes: (1) material which

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has not been made public and which is protected from disclosure by federal or

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state constitutional, statutory and common law, including, but not limited to,

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rights of privacy of the parties to this stipulation and of third parties; and (2) any

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confidential material that constitutes or refers to trade secrets, other highly

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sensitive information of a competitive or financial nature, or individual personal

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information from employee files.

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3.9

House Counsel: Attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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3.10 Non-Party: Any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.

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3.11 Outside Counsel of Record: Attorneys who are not employees of a

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Party to this Action but are retained to represent or advise a Party to this Action

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and have appeared in this Action on behalf of that Party or are affiliated with a

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law firm which has appeared on behalf of that Party, and includes support staff.

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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3.12 Party:

Any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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3.13 Producing Party: A Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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3.14 Professional Vendors:

Persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits

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or demonstrations, and organizing, storing, or retrieving data in any form or

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medium) and their employees and subcontractors.

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3.15 Protected Material: Any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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3.16 Receiving Party:

A Party that receives Disclosure or Discovery

Material from a Producing Party.

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4.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

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5.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of: (1) dismissal of all claims and defenses in this Action,
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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6.

DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The Designating Party

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must designate for protection only those parts of material, documents, items, or

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oral or written communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not warranted are

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not swept unjustifiably within the ambit of this Order.

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Mass,

indiscriminate,

or

routinized

designations

are

prohibited.

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Designations that are shown to be clearly unjustified or that have been made for

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an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that

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it designated for protection do not qualify for protection that Designating Party

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided

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in this Order (see, e.g., second paragraph of Section 6.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for

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protection under this Order must be clearly so designated before the material is

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disclosed or produced.
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” to each page that

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contains protected material. If only a portion or portions of the material on

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a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in

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the margins).

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A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the inspecting

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Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “HIGHLY CONFIDENTIAL.”

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After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix the

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appropriate

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CONFIDENTIAL”) to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by

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making appropriate markings in the margins).

legend

(either

“CONFIDENTIAL”

or

“HIGHLY

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(b) for testimony given in depositions, that the Designating Party

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identify the Disclosure or Discovery Material on the record, before the

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close of the deposition, and further specify any portions that qualify as

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“HIGHLY CONFIDENTIAL.”

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information is stored the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL.”

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warrants protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s).

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6.3

If only a portion or portions of the information

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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7.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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7.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1, et seq.
7.3

The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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8.

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected Material that

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is disclosed or produced by another Party or by a Non-Party in connection with

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this Action only for prosecuting, defending, or attempting to settle this Action.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order.

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terminated, a Receiving Party must comply with the provisions of Section 14

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below (FINAL DISPOSITION).

When the Action has been

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the Court or permitted in writing by the Designating Party, a

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Receiving

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“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

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(a) the Receiving Party’s Outside Counsel of Record in this Action,

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as well as employees of said Outside Counsel of Record to whom it is

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reasonably necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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(c) Experts (as defined in this Order) of the Receiving Party to

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whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f)

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professional jury or trial consultants, mock jurors, and

Professional Vendors to whom disclosure is reasonably necessary for this
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g) the author or recipient of a document containing the information

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or a custodian or other person who otherwise possessed or knew the

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information, including those who received or reviewed the information

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prior to its production in this lawsuit;

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(h) third-party witnesses at any deposition, hearing, or trial in this

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litigation to the extent they need knowledge of the particular confidential

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information for purposes of their testimony and/or preparation therefore,

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provided they have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), and

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(i)

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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8.3

Disclosure of “HIGHLY CONFIDENTIAL” Information or Items:

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“HIGHLY CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of record in this action,

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as well as employees of said Counsel to whom it is reasonably necessary to

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disclose the information for this Action;

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(b)

the Receiving Party’s House Counsel;

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(c)

Experts (as defined in this Order): (1) to whom disclosure is

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reasonably necessary for this litigation; and (2) who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the Court and its personnel;

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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(e)

court reporters, their staffs, and professional vendors to whom

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disclosure is reasonably necessary for this litigation and who have signed

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and

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(f)

the author of the document or the original source of the

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information, including those who received or reviewed the information prior to its

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production in this lawsuit.

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party.

Such

notification shall include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered

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by the subpoena or order is subject to this Protective Order.

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notification shall include a copy of this Stipulated Protective Order; and

Such

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(c) cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be

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affected.

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If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before a

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determination by the court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed as
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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authorizing or encouraging a Receiving Party in this Action to disobey a lawful

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directive from another court.

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10.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL.” Such information produced by Non-Parties in connection

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with this litigation is protected by the remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party from

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seeking additional protections.

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In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject

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to an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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(a) promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;

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(b) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and

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(c) make the information requested available for inspection by the

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Non-Party, if requested.

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If the Non-Party fails to seek a protective order from this Court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party

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shall not produce any information in its possession or control that is subject to the
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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confidentiality agreement with the Non-Party before a determination by the Court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately: (a)

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notify in writing the Designating Party of the unauthorized disclosures; (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material; (c)

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inform the person or persons to whom unauthorized disclosures were made of all

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the terms of this Order; and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” attached hereto as Exhibit A.

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review.

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13.

MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Order abridges the right of

any person to seek its modification by the Court in the future.

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13.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order, no Party waives any right it otherwise would have to object to
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

1

disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

4

Order.

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13.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material

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may only be filed under seal pursuant to a court order authorizing the sealing of

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the specific Protected Material at issue. If a Party’s request to file Protected

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Material under seal is denied by the Court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the Court.

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14.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in Section 5

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(DURATION), within 60 days of a written request by the Designating Party, each

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Receiving Party must return all Protected Material to the Producing Party or

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destroy such material.

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includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected

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Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where

22

appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain

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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

27

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

As used in this subdivision, “all Protected Material”

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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such materials contain Protected Material. Any such archival copies that contain

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or constitute Protected Material remain subject to this Protective Order as set forth

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in Section 5 (DURATION).

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15.

VIOLATION OF THIS ORDER

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Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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MLG AUTOMOTIVE LAW, APLC
Dated: April 14, 2015

By:

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/s/ Kathryn J. Harvey
Jonathan A. Michaels, Esq.
Kathryn J. Harvey, Esq.
Attorneys for Plaintiff Material
Handling Supply, Inc.

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HARTLINE DACUS BARGER
DREYER LLP
LARSON, GARRICK &
LIGHTFOOT, LLP

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Dated: April 14, 2015

By:

/s/ Adrienne N. Russell
Jeffrey S. Patterson, Esq.
Adrienne N. Russell, Esq.
Drew Larson, Esq.
Attorneys for Defendant UniCarriers
Americas Corporation

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

1

FOR

GOOD

CAUSE

SHOWN,

THE

REQUESTED

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PROTECTIVE ORDER, PURSUANT TO THE PARTIES’ STIPULATION,

3

IS GRANTED.

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IT IS SO ORDERED.

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DATED:

April 20, 2015

/s/
HON. VICTOR B. KENTON
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that

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was issued by the United States District Court for the Central District of

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California on [date] in the case of Material Handling Supply, Inc. v. Unicarriers

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Americas Corporation, 2:14-CV-01973-FMO-VBK. I agree to comply with and

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to be bound by all the terms of this Stipulated Protective Order and I understand

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and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of

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this Order.

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I further agree to submit to the jurisdiction of the United States District

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Court for the Central District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this Action. I hereby appoint __________________________

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[print or type full name] of _______________________________________ [print

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or type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement

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of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________
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STIPULATED PROTECTIVE ORDER
CASE NO. 2:14-CV-01973-FMO-VBK