Helo Energy, LLC v. Sand Canyon of Tehachapi, LLC et al

Filing 59

PROTECTIVE ORDER by Magistrate Judge Alka Sagar. re Second Amended Stipulated Protective Order 58 . (afe)

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SHEPPARD MULLIN RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
JOHN A. YACOVELLE, Cal. Bar No. 131781
MARISA B. MILLER, Cal. Bar No. 270860
12275 El Camino Real, Suite 200
San Diego, California 92130
Telephone: [phone]
Facsimile: 858-509-3691
JONATHAN D. MOSS, Cal. Bar No. 252376
333 South Hope Street, 48th Floor
Los Angeles, California 90071-1448
Telephone: [phone]
Facsimile: 213-620-1398
E-mail:
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs and Cross-Defendants
HELO ENERGY, LLC, SAND CANYON OF
TEHACHAPI, LLC, SAUGATUCK ENERGY, LLC
and DAVID MURPHY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HELO ENERGY LLC, a Delaware
limited liability company, SAND
CANYON OF TEHACHAPI, LLC, a
California limited liability company,
and SAUGATUCK ENERGY, LLC, a
Connecticut limited liability company,
Plaintiffs,
v.
JEFREY HOGGAN, an individual,
KENT A. HOGGAN, an individual,
HEATHER K. KANN, an individual,
DAVID L. PITCHER, a/k/a “David
Lawrence,” an individual, EAGLE
ENERGY, LLC, a Utah limited
liability company, GLJ, LLC, a Utah
limited liability company,
SOUTHERN CALIFORNIA EDISON
COMPANY, a California corporation,
and DOES 1 through 10, inclusive,
Defendants.

Case No. CV14-06648-DSF (ASx)
Assigned to Hon. Alka Sagar for
Purposes of Discovery
SECOND AMENDED
[PROPOSED] STIPULATED
PROTECTIVE ORDER
BETWEEN PLAINTIFFS AND
THIRD PARTY SOUTHERN
CALIFORNIA EDISON
COMPANY
Complaint Filed: March 28, 2012
FAC Filed:

July 24, 2014

Notice of Removal
Filed:
August 25, 2014

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SECOND AMENDED STIPULATED
PROTECTIVE ORDER

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GLJ, LLC, a Utah limited liability
company,
Cross-Complainant,
v.
HELO ENERGY, LLC, a Delaware
limited liability company, SAND
CANYON OF TEHACHAPI, LLC, a
California limited liability company,
SAUGATUCK ENERGY, LLC, a
Connecticut limited liability company,
RAR ENERGY CONSULTING, LLC,
a California limited liability company,
FISHCREEK CAPITAL FUNDING
L.P., a business entity of form
unknown, and ROES 1 through 50,
inclusive,
Cross-Defendants.
EAGLE ENERGY, LLC, a Utah
limited liability company,
Cross-Complainant,
v.
RUDY SAENZ, an individual, DAVID
MURPHY, an individual, MIKE
CLARY, an individual, LIGHTWAVE
TECHNOLOGIES, INC.,
LIGHTWAVE ENERGY, LLC, HELO
ENERGY, LLC f/k/a SAN CANYON
HOLDCO, LLC a/k/a SC HOLDCO,
LLC, SAUGATUCK ENERGY, LLC,
RAR CONSULTING, LLC,
RICHARD REDOGLIA, an individual,
DYNAMIC ENERGY PARTNERS,
LLC, GLJ, LLC, HEATHER KANN,
an individual, and ROES 1 through 50,
inclusive,
Cross-Defendants.

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SECOND AMENDED STIPULATED
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STIPULATED PROTECTIVE ORDER

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On March 28, 2012, Plaintiffs Helo Energy, LLC, Sand Canyon of

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Tehachapi, LLC and Saugatuck Energy, LLC (collectively, “Plaintiffs”) filed this

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action in Los Angeles County Superior Court against various defendants, including

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Southern California Edison Company (“SCE”), relating to the development of a

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wind farm in Tehachapi, California. Plaintiffs allege that SCE breached its power

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purchase and sale agreement (“PPSA”) with Sand Canyon of Tehachapi, LLC

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(“Sand Canyon”) to purchase power from the wind farm. Plaintiffs assert separate

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fraud claims against the other defendants for alleged misrepresentations concerning

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the condition and viability of the wind farm. Plaintiffs and the other defendants

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also disagree about which party actually owns and controls Sand Canyon.
On May 14, 2012, SCE petitioned the trial court to compel arbitration of

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Plaintiffs’ claims against it based upon the PPSA’s arbitration provision. The court

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denied SCE’s petition and ordered those claims to be litigated in court. SCE

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subsequently appealed the decision, which triggered an automatic stay of this

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proceeding pending the outcome of the appeal.
On October 15, 2013, the California Court of Appeal reversed the trial

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court’s order, holding that Plaintiffs’ claims against SCE should be arbitrated. At

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the parties’ request, the trial court on remand lifted the stay as to the claims

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between Plaintiffs and the other defendants and stayed the arbitration on Plaintiffs’

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claims against SCE until ownership and control of Sand Canyon had been

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established through a finding of fact in that litigation. The trial court gave Plaintiffs

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leave to apply to lift the stay of arbitration for good cause at any time, without

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limitation.
Given that Plaintiffs’ claims against SCE must be arbitrated, SCE is actually

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a third party to this litigation.

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WHEREAS, on or about June 18, 2014, Plaintiffs served a third party

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Deposition Subpoena for Production of Business Records on SCE in Los Angeles
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Superior Court seeking documents related to their claims against the other

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defendants;
WHEREAS, on or about August 25, 2014, this case was removed to the

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United States District Court;
IT IS HEREBY STIPULATED AND AGREED, by and among counsel for

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Plaintiffs and third party SCE, and subject to the approval of the Court, that the

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following Stipulated Protective Order (“Order”) shall govern the designation,

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disclosure, and use of information, documents, or things produced by SCE in this

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case. In order to protect confidential information obtained by Plaintiffs in this case,

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the parties to this Order, by and through their respective undersigned counsel and

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subject to the approval of the Court, hereby agree as follows:

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A. PURPOSES AND LIMITATIONS

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SCE’s document production in response to the subpoena is likely to involve

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confidential, proprietary, or private information for which special protection from

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

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be warranted. Accordingly, Plaintiffs and SCE hereby stipulate to and petition the

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Court to enter the following Order. SCE and Plaintiffs acknowledge that this Order

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protects only the limited information that is entitled to confidential treatment under

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applicable legal principles. Plaintiffs and SCE further acknowledge that the

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existence of this Order does not, in itself, provide a basis upon which to file

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confidential information under seal. Rather, Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a party

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seeks permission from the Court to file materials under seal.

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B. GOOD CAUSE STATEMENT

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SCE’s document production in response to the subpoena is likely to contain,

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reveal or reflect its own confidential business information or that of a third party,

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including, but not limited to, competitive pricing and financial information,

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transaction terms, and regulatory information that is not publicly known; as well as
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other information or materials prohibited from public disclosure by SCE’s tariffs.

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Accordingly, to expedite the flow of information, to facilitate the prompt resolution

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over confidentiality of materials, to adequately protect information that SCE is

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entitled to keep confidential, to ensure that Plaintiffs are permitted reasonable

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necessary uses of such material in preparation for and the conduct of trial, to

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

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

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SCE and Plaintiffs that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public matter, and there is good cause

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why it should not be part of the public record of this case.
Part One: Use Of Confidential Materials In Discovery

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1. SCE may designate as “Confidential” (by stamping the relevant

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document or as otherwise set forth herein) any document that it considers in good

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faith to contain, reveal or reflect its own confidential business information or that of

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a third party, including, but not limited to, competitive pricing and financial

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information, transaction terms, and regulatory information that is not publicly

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known; as well as any other information or materials prohibited from public

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disclosure by SCE’s tariffs. SCE may also redact any “Confidential” information

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of unrelated third parties in documents that it produces. Plaintiffs retain the right to

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challenge any such redaction as set forth in Paragraphs 8 and 9 of this Order. Any

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use of protected material at trial shall be governed by the orders of the trial judge.

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This Order does not govern the use of protected material at trial.
2. SCE may also designate information disclosed during a deposition as

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“Confidential” by so indicating on the record at the deposition and requesting the

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preparation of a separate transcript of such material. In addition, SCE may designate

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in writing, within thirty (30) calendar days after receipt of said deposition transcript

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for which the designation is proposed, that specific pages of the transcript be treated
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as “Confidential.” Only the portions of the testimony that are designated for

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protection during the deposition, or within 30 calendar days after receipt of the

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deposition transcript, shall be covered by the provisions of this Order. After any

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confidentiality designation made according to the procedure set forth in this

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paragraph, the designated documents or information shall be treated accordingly until

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any dispute over the designation is resolved by the procedures described in

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Paragraphs 8 and 9 of this Order, and counsel for the parties to this Order shall be

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responsible for marking all previously unmarked copies of the designated material in

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their possession or control with the specified designation.
3. All “Confidential” information produced by SCE during this litigation

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shall be used by Plaintiffs solely for the purpose of this case or, where permissible, in

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a subsequent arbitration proceeding between Plaintiffs and SCE over the termination

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of the PPSA. “Confidential” information shall not be used for any commercial,

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competitive, personal, or other purpose.
4. Except with SCE’s prior written consent, or upon prior order of the

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Court obtained upon notice to SCE, Plaintiffs shall not disclose “Confidential”

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information to any person other than:
(a)

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their counsel and their counsel’s employees, to the extent such
disclosure is necessary for the prosecution or defense of this case;

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(b)

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their officers or employees, to the extent such disclosure is
necessary for the prosecution or defense of this case;

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(c)

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consultants or expert witnesses that they retain for the
prosecution or defense of this case, provided that each such

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person shall execute a copy of the Certification attached to this

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Order as Exhibit A (which Plaintiffs’ counsel shall retain and

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make available for inspection by SCE’s counsel during the

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pendency or after the termination of the case only upon good

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cause shown and upon order of the Court) before being shown or

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given any “Confidential” information;

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(d)

the parties to this action and their counsel;

(e)

any authors or recipients of the “Confidential” information;

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(f)

the Court, court personnel, and court reporters;

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(g)

deposition witnesses, who, if not otherwise described in

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Paragraph 4 of this Order, shall sign the Certification before

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being shown a “Confidential” document. At SCE’s request, the

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portion of the deposition transcript involving the “Confidential”

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information shall be designated “Confidential” pursuant to

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Paragraph 2 of this Order. Deposition witnesses shown

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“Confidential” information shall not be allowed to retain copies;

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and
(i)

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any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties and/or

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SCE, engaged in settlement discussions; provided that any such

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person execute a copy of the Certification attached to this Order

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as Exhibit A (which Plaintiffs’ counsel shall retain and make

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available for inspection by SCE’s counsel during the pendency or

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after the termination of the case only upon good cause shown and

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upon order of the Court) before being shown or given any

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“Confidential” information.

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5. Any persons receiving “Confidential” information shall not reveal or

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discuss such information to or with any person who is not entitled to receive such

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information, except as set forth herein. If Plaintiffs or their representatives, including

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counsel, inadvertently disclose any “Confidential” information to persons who are

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not authorized to use or possess such material, Plaintiffs shall immediately notify
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SCE of the disclosure in writing. If Plaintiffs have actual knowledge that

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“Confidential” information is being used or possessed by a person not authorized to

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use or possess that material, regardless of how the material was disclosed or obtained

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by such person, they shall provide immediate written notice of the unauthorized use

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or possession to SCE.
6. If any court or administrative agency subpoenas or orders Plaintiffs to

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produce documents or information that SCE has designated as “Confidential,”

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Plaintiffs shall promptly notify SCE of the issue and provide SCE’s counsel a copy

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of the subpoena or order. SCE (the designating party) shall bear the burden and

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expense of seeking protection of its “Confidential” material and nothing in these

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provisions should be construed as authorizing or encouraging a party or non-party

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in this action who has received such a request to disobey a lawful directive from

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another court.
7. SCE may voluntarily disclose its “Confidential” information to others

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without restriction, although any document containing such “Confidential”

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information will lose its confidential status if it is made public. Such documents

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will not lose their confidential status, however, if they are made public through no

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fault of SCE. If SCE produces materials designated “Confidential” in compliance

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with this Order, that production shall be deemed to have been made consistent with

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any confidentiality or privacy requirements mandated by local, state or federal laws.

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8. If, after conferring with SCE about their concerns in good faith,

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Plaintiffs still contend that any document or material designated “Confidential” is not

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entitled to such treatment, they may give SCE written notice to that effect. SCE shall

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then have twenty (20) calendar days from the receipt of such written notice to seek an

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order from the Court designating the material “Confidential.” SCE has the burden of

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establishing that the document is entitled to protection. Any party or non-party may

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challenge a designation of confidentiality at any time that is consistent with the

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Court’s Scheduling Order. The challenging party shall initiate the dispute resolution
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process under Local Rule 37.1 et seq. The burden of persuasion in any such

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challenge shall be on the designating party. Frivolous challenges, and those made for

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

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other parties) may expose the challenging party to sanctions.
9. Notwithstanding any challenge to the designation of material as

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“Confidential,” all documents with that designation shall be treated as such and shall

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be subject to the provisions herein unless and until one of the following occurs:
(a)

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SCE withdraws the “Confidential” designation in writing or
voluntarily makes the material public; or

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(b)

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SCE fails to seek an order from the Court designating the

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material confidential within the time period specified above after

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receipt of a written challenge to such designation; or
(c)

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the Court rules the material is not “Confidential” information.

10. All provisions of this Order restricting the communication or use of

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“Confidential” information shall continue to be binding after the conclusion of this

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case, unless otherwise agreed or ordered. Upon the conclusion of this case or any

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arbitration between Plaintiffs and SCE over the termination of the PPSA, whichever

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is later, Plaintiffs shall either (a) return all “Confidential” documents in their

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possession to SCE within thirty (30) calendar days, or (b) destroy such documents

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within that time period upon SCE’s written consent and notify SCE in writing that

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the documents have been destroyed. Any material designated “Confidential” that is

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not returned or destroyed remains “Confidential” and subject to this Order.
11. Nothing herein shall be deemed to waive any applicable privilege or

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work product protection, or to affect SCE’s ability to seek relief for an inadvertent

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disclosure of material protected by privilege or work product protection.
12. The provisions of this Order may be modified at any time by stipulation

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of the parties and approval by order of the Court, or upon Motion for good cause

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shown.
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Part Two: Use of Confidential Materials in Court

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The following provision governs the treatment of “Confidential” information used

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at trial or submitted as a basis for adjudication of matters other than discovery

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motions or proceedings.
13. If Plaintiffs seek to file with the Court, or seek to use at trial, any

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materials that SCE designated as “Confidential,” they shall do so by filing a motion

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or application to seal said “Confidential” materials pursuant to Local Rule 79-5.1.

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Plaintiffs shall provide SCE a courtesy copy of any such motion or application at

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the time of the filing. If a party’s request to file material subject to this Protective

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Order 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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IT IS SO STIPULATED.

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Dated:

December 15, 2014

SHEPPARD MULLIN RICHTER &
HAMPTON LLP

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By: /s/ Jonathan D. Moss
Jonathan D. Moss

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Attorneys for Plaintiffs
HELO ENERGY, LLC, SAND
CANYON OF TEHACHAPI, LLC,
SAUGATUCK ENERGY, LLC and
DAVID MURPHY

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Dated:

December 15, 2014

HOGAN LOVELLS US LLP

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By: /s/ James J. Ward
James J. Ward

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Attorneys for Third Party
SOUTHERN CALIFORNIA EDISON
COMPANY

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Attestation Regarding Signatures

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I, Jonathan D. Moss, attest that all signatories listed, and on whose behalf the

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filing is submitted, concur in the filing’s content and have authorized the filing.

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DATED: December 15, 2014

/s/ Jonathan D. Moss
JONATHAN D. MOSS

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FOR GOOD CAUSE SHOWN, IT IS
SO ORDERED.
Dated: December 16, 2014
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/s/

Honorable Alka Sagar
United States Magistrate Judge

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EXHIBIT A

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. CV14-06648-DSF (ASx)

HELO ENERGY LLC, a Delaware
limited liability company, SAND
CANYON OF TEHACHAPI, LLC, a
California limited liability company,
and SAUGATUCK ENERGY, LLC, a
Connecticut limited liability company,
Plaintiffs,
v.
JEFREY HOGGAN, an individual,
KENT A. HOGGAN, an individual,
HEATHER K. KANN, an individual,
DAVID L. PITCHER, a/k/a “David
Lawrence,” an individual, EAGLE
ENERGY, LLC, a Utah limited
liability company, GLJ, LLC, a Utah
limited liability company,
SOUTHERN CALIFORNIA EDISON
COMPANY, a California corporation,
and DOES 1 through 10, inclusive,
Defendants.
And All Related Cross-Claims.

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Assigned to Hon. Alka Sagar for
Purposes of Discovery

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DECLARATION OF COMPLIANCE

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I, (print or type full name) _________________________________,
declare under penalty of perjury under the laws of the State of California that the
following statements are true and correct:

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I reside in _____________ County, in the state of __________. I am employed
by (state name and address of employer) ________________________ as (state
position) _________________________________.
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1.

I have read the Stipulated Protective Order between Plaintiffs and third

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party Southern California Edison Company (“Order”) in this proceeding, a copy of

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which has been given to me.

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2.

I understand and agree to comply with and be bound by the provisions

of the Order upon receipt of any “Confidential” information, document, or thing.

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3.

I will be personally subject to the Order and all of its requirements and

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procedures, and will be subject to the Court’s jurisdiction for enforcement of the

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Order.

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Executed at _____________________ on this _____ day of _____________,

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_____.

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(Signature)

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