Major Communications Inc. v. CLK Group Inc. et al

Filing 28

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 27 . (san)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MAJOR COMMUNICATIONS,
INC., a California corporation,

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Plaintiff,

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vs.
CLK GROUP INC. et al.,

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Defendants.

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Case No.: 2:14-cv-06690-BRO-JEM
Beverly Reid O’Connell
[PROPOSED] PROTECTIVE
ORDER
DISCOVERY MATTER

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Plaintiff Major Electronics, Inc. (“Major”) and Defendants CLK Group,

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Inc. (“CLK”), Ken Heng (“Heng”), and Tho Hai Duong aka Richie Duong

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(“Duong”; together with CLK and Heng, “Defendants”), recognizing that each

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may have materials containing trade secret or other confidential research,

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technical, cost, price, sales, marketing or other commercial information, as is

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contemplated by Federal Rule of Civil Procedure 26(c), have agreed to the terms

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of the Protective Order (“Order”) as set forth below. The purpose of this Order

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is to protect the confidentiality of such materials as much as practical during the

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litigation.

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GOOD CAUSE STATEMENT

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Good cause exists for this Court to enter the Stipulated Protective Order

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because disclosure of the parties’ confidential information could harm the

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parties financially and allow competitors to gain unfair advantage. For example,

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competitors could gain an unfair advantage over the parties if they learn the

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parties’ confidential information, such as financial information, sales

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information, business and marketing strategies, or information concerning the

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parties’ internal business operations. Such information could allow others to

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unfairly compete in the market and usurp the parties’ business opportunities, to

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the detriment of the parties. Good cause further exists in that this Stipulated

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Protective Order will allow for the parties to disclose documents that may be

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required for the litigation of this matter without suffering an economic and

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business detriment that would result from the disclosure of confidential

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information to the parties’ competitors and/or to the public.

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THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY
ORDERED:
1.

This Order shall apply to all information produced during

discovery in this action that shall be designated by the party or person producing
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it as “Confidential” or “Confidential-Attorneys’ Eyes Only” (collectively

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“Confidential Information”). This Order shall not apply to information that,

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before disclosure, is properly in the possession or knowledge of the party to

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whom such disclosure is made, or is public knowledge. The restrictions

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contained in this Order shall not apply to information that is, or after disclosure

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becomes, public knowledge other than by an act or omission of the party to

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whom such disclosure is made, or that is legitimately acquired from a source not

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subject to this Order.
2.

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This Order shall not govern the use of Confidential Information at

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trial or at other court hearings or proceedings. Any use of Confidential

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Information at trial or at other court hearings or proceedings shall be governed

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by the orders of the trial judge or judicial officer conducting the proceeding at

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the appropriate time.
3.

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The terms of this Order do not apply to the Court or Court

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personnel, as they are subject only to the Court’s internal procedures regarding

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the handling of material filed or lodged, including material lodged or filed under

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seal.

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4.

If a document or thing produced in response to a document request

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or in connection with a deposition, interrogatory answer, or admission

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(collectively “discovery response”), or if a deposition transcript contains

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information that in the good faith belief of a party and its counsel contains

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confidential information, such discovery response, or deposition transcript shall

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be designated “Confidential” or “Confidential-Attorneys’ Eyes Only” by the

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party contending there is confidential information therein.

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5.

In connection with a discovery response, the legend “Confidential”

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or “Confidential-Attorneys’ Eyes Only” (in such a manner as will not interfere

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with the legibility thereof) shall be affixed before the production or service upon

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a party.
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6.

As a general guideline, a document may be designated

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“Confidential” when it contains confidential business, technical or other

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information that may be reviewed by the receiving party, the parties’ experts,

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and other representatives, but must be protected against disclosure to third

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parties. A document may be designated “Confidential-Attorneys’ Eyes Only”

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only when it contains the following highly sensitive information: financial

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information; cost information; pricing information; sales information; trade

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secret information; customer, license, supplier, and vendor information;

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technical and development information about a party’s products; comparative

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product test results; business plans; marketing strategies; new product plans and

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competitive strategies; or any other information that would put the producing

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party at a competitive disadvantage if the information became known to

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employees of the receiving party or third parties.

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7.

All Confidential Information that has been obtained from a party

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during the course of this proceeding shall be used only for the purpose of this

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litigation and not for any other business, proceeding, litigation, or other purpose

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whatsoever. Further, such information may not be disclosed to anyone except

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as provided in this Order. Counsel for a party may give advice and opinions to

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their client based on evaluation of information designated as Confidential

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Information produced by the other party. For information designated

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“Confidential-Attorneys’ Eyes Only,” such rendering of advice and opinions

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shall not reveal the content of such information except by prior agreement with

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opposing counsel.

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8.

All documents, or any portion thereof, produced for inspection only

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(i.e., copies have not yet been provided to the receiving party) shall be deemed

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“Confidential-Attorneys Eyes Only.” If a copy of any such document is

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requested after inspection, the document shall be deemed “Confidential” or

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“Confidential-Attorneys Eyes Only” only if labeled or marked in conformity
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with paragraph 4, with access and dissemination limited as set forth in

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paragraphs 12-14.

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Information disclosed at a deposition may be designated as

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“Confidential” or “Confidential-Attorneys’ Eyes Only” at the time of the

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deposition, or within fourteen (14) days following receipt of the final transcript,

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and upon designation shall be subject to the provisions of this Order. Additional

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information disclosed during a deposition may be designated as “Confidential”

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or “Confidential-Attorneys’ Eyes Only” by notifying the other party, in writing,

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within fourteen (14) days after receipt of the final transcript, of the specific

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pages of the transcript that should also be so designated. Upon designation, the

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transcript shall not be disclosed by a non-designating party to persons other than

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those persons named or approved according to paragraphs 12-14 to review

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documents or materials designated “Confidential-Attorneys’ Eyes Only” on

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behalf of that non-designating party.

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10.

In accordance with Local Rule 79-5.1, if any papers to be filed with

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

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“Confidential” or “Confidential-Attorneys’ Eyes Only,” the proposed filing

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shall be accompanied by an application to file the papers or the portion thereof

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containing the designated information or documents (if such portion is

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segregable) under seal; and the application shall be directed to the judge to

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whom the papers are directed.

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11.

As used in this Order, “Trial Counsel” refers to the following:

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(a)

For Plaintiff: The attorneys, paralegals, agents, and support staff of

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Leech Tishman Fuscaldo & Lampl (or its successor), but shall not include any

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current or former officer, director, or employee of Major.

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(b)

For Defendant: The attorneys, paralegals, agents, and support staff

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of Lynberg & Watkins (or its successor), but shall not include any current or

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former officer, director, or employee of any Defendant.
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(a)

Others: Such additional attorneys as may be ordered by the Court,

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or subsequently may be agreed upon by the parties, such agreement not to be

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unreasonably withheld.

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12.

Material designated as “Confidential-Attorneys’ Eyes Only” that

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has been obtained from a party or non-party during the course of this proceeding

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may be disclosed or made available only to the persons designated below,

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subject to paragraph 14:

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(a)

the Court and court personnel;

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(b)

court reporters employed in this action;

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(c)

Trial Counsel for either party;

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(d)

agents of Trial Counsel needed to perform various services such as,

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for example, copying, drafting of exhibits, and support and management

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services, including vendors retained for the purpose of encoding, loading into a

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computer and storing and maintaining for information control and retrieval

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purposes, transcripts of depositions, hearings, trials, pleadings, exhibits marked

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by a party, or attorneys' work product, all of which may contain Confidential

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Information;

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(e)

independent experts or consultants (together with their clerical

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staff) retained by Trial Counsel to assist in the prosecution, defense, or

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settlement of this action;

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(f)

authors and prior recipients of any Confidential Information;

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(g)

witnesses during any deposition or other proceeding in this action

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(i) who are the author or recipient of the Confidential Information, (ii) who,

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based on evidence, have seen the material in the past, or (iii) who counsel for a

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party reasonably believes have knowledge of the contents of the document or

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the specific events, transactions, discussions, or data reflected in the document,

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and upon the witness being advised of the need and agreeing to keep the records

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confidential; and
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(h)

any other persons as to whom the parties agree in writing.

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13.

Material designated as “Confidential” that has been obtained from

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a party or nonparty during the course of this proceeding may be disclosed or

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made available only to those persons identified in paragraph 12 and to the

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persons designated below, subject to paragraph 14:

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(a)

No more than three officers, directors, or designated employees of

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a party deemed necessary by Trial Counsel to aid in the prosecution, defense, or

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settlement of this action.

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14.

Each person identified under paragraphs 12(d)-(g) and 13(a),

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before having access to the Confidential Information, shall agree not to disclose

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to anyone not exempted by this Order any Confidential Information and not to

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make use of any such Confidential Information other than solely for purpose of

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this litigation, and shall acknowledge in writing by signing the Agreement to be

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Bound by Protective Order in the form of Exhibit A (the “Acknowledgement)

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attached hereto, that he or she is fully conversant with the terms of this Order

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and agrees to comply with it and be bound by it. Counsel shall retain in his/her

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file until at least the conclusion of this litigation the original of each such signed

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Acknowledgement.

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15.

For the purpose of this Order, an independent expert or consultant

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shall be defined as a person, who has not been and is not an employee of a party

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or scheduled to become an employee in the near future, and who is retained or

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employed as a consultant or expert for purposes of this litigation, either full or

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part-time, by or at the direction of counsel of a party.

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16.

Any Confidential Information may be used in the course of any

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deposition taken of the party producing such Confidential Information or its

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employees without consent, or otherwise used in any deposition with the

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consent of the party producing such Confidential Information, subject to the

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condition that when such Confidential Information is so used, the party who
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made the designation may notify the reporter that the portion of the deposition

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in any way pertaining to such Confidential Information or any portion of the

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deposition relevant thereto is being taken pursuant to this Order. Further,

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whenever any Confidential Information is to be discussed or disclosed in a

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deposition, any party claiming such confidentiality may exclude from the room

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any person not entitled to receive such Confidential Information pursuant to the

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terms of this Order.

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17.

A receiving party who objects to the designation of any document,

discovery response, or deposition or other testimony as “Confidential” or

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“Confidential-Attorneys’ Eyes Only” shall state the objection by letter (or by

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means of an electronic communication such as email) which complies with the

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requirements of Local Rule 37-1 to counsel for the producing party. Pursuant to

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Local Rule 37-1, counsel for the parties shall confer within seven (7) days

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following receipt of the letter stating the objection. If the objection is not

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resolved through the parties’ meeting pursuant to Local Rule 37-1, the receiving

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party may move the Court to determine whether the document, discovery

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response or deposition or other testimony at issue qualifies for treatment as

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“Confidential” or “Confidential-Attorneys’ Eyes Only.” The receiving party’s

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motion must be accompanied by a written stipulation of the parties as required

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by Local Rule 37-2. If the receiving party files such a motion, the document,

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discovery response, or deposition or other testimony at issue will continue to be

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entitled to the protections accorded by this Order until and unless the Court

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rules otherwise. If the receiving party files such a motion, the designating party

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shall bear the burden of establishing that the document, discovery response or

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deposition or other testimony at issue qualifies for treatment as “Confidential”

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or “Confidential-Attorneys’ Eyes Only.” Nothing herein shall operate as an

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admission by any party that any particular document, discovery response, or

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deposition or other testimony contains “Confidential” or “Confidential-7-

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Attorneys’ Eyes Only” Information for purposes of determining the merits of

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the claims in this litigation.

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18.

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

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designation of any document, discovery response or deposition or other

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testimony at the time such designation is made; failure to do so shall not

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preclude a subsequent challenge within a reasonable time. Further, a party’s

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failure to challenge a designation during pretrial discovery shall not preclude a

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subsequent challenge of such designation at trial or in connection with the

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submission of any document, discovery response or deposition or other

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testimony to the Court for any purpose.
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Notwithstanding anything contrary herein, if a party or non-party

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through inadvertence or mistake produces any Confidential Information without

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marking it with the legend “Confidential” or “Confidential-Attorneys’ Eyes

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Only,” or by designating it with an incorrect level of confidentiality, the

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producing party may give written notice to the receiving party that the

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document, discovery response, or deposition or other testimony contains

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Confidential Information and should be treated as such in accordance with the

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provisions of this Order. Upon receipt of such notice, and upon receipt of

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properly marked materials, the receiving party shall return said unmarked

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materials and not retain copies thereof, and must treat such documents,

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discovery responses, or deposition or other testimony as Confidential

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Information and shall cooperate in restoring the confidentiality of such

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Confidential Information. The inadvertent or unintentional disclosure by a party

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of Confidential Information, regardless of whether the information was so

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designated at the time of disclosure, shall not be deemed a waiver in whole or in

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part of a party's claim of confidentiality either as to the specific information

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disclosed or as to any other information relating thereto or on the same or

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related subject matter, provided that the non-producing party is notified and
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properly marked documents are supplied as provided herein. The receiving

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party shall not be responsible for the disclosure or other distribution of belatedly

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designated Confidential Information as to such disclosure or distribution that

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may occur before the receipt of such notification of a claim of confidentiality

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and such disclosure or distribution shall not be deemed to be a violation of this

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Order.

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20.

If, after producing documents or materials in the litigation, a

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producing party discovers that the documents or materials include information

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that is properly subject to protection under the attorney-client privilege or the

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attorney work product doctrine, the producing party shall promptly provide

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written notice to the receiving party that the documents or materials were

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inadvertently produced and properly subject to protection under the attorney-

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client privilege or the attorney work product doctrine. Upon receiving such

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written notice from the producing party that privileged information or attorney

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work product material has been inadvertently produced, all such information,

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and all copies thereof, either shall be promptly returned to the producing party,

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or shall be destroyed and the receiving party shall promptly provide the

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producing party with notice that all such documents have been destroyed. If the

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receiving party disagrees with the designation of any such documents or

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materials as privileged or otherwise protected after conferring with the

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

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documents or materials to the producing party as specified above, but may move

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the Court for production of the returned documents or materials. The producing

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party shall retain all returned documents or materials for further disposition but

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shall make them available to the Court, if necessary, to enable the Court to

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decide any such motion. This provision is not intended to modify whatever

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

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production without prior privilege review pursuant to Federal Rule of Evidence

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502(d) and (e).

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21.

All Confidential Information must be held in confidence by those

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

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Counsel for each party, and each person receiving Confidential Information

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must take reasonable precautions to prevent the unauthorized or inadvertent

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disclosure of such information. If Confidential Information is disclosed to any

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person other than a person authorized by this Order, the party responsible for the

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unauthorized disclosure must immediately bring all pertinent facts relating to

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the unauthorized disclosure to the attention of the other parties and, without

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prejudice to any rights and remedies of the other parties, make every effort to

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prevent further disclosure by the party and by the person(s) receiving the

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unauthorized disclosure.

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Documents and things produced or made available for inspection

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may be subject to redaction, in good faith by the producing party, of sensitive

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material that is subject to the attorney-client privilege or to work-product

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immunity. Each such redaction, regardless of size, will be clearly labeled. This

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paragraph shall not be construed as a waiver of any party's right to seek

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disclosure of redacted information.

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Neither the taking or the failure to take any action to enforce the

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provisions of this Order, nor the failure to object to any designation or any such

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action or omission, shall constitute a waiver of any signatory's right to seek and

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obtain protection or relief, with respect to any claim or defense in this action or

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any other action including, but not limited to, the claim or defense that any

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information is or is not proprietary to any party, is or is not entitled to particular

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protection or that such information embodies trade secret or other confidential

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information of any party. The procedures set forth herein shall not affect the

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rights of the parties to object to discovery on grounds other than those related to
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trade secrets or other confidential information claims, nor shall it relieve a party

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of the necessity of proper responses to discovery requests.
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This Order shall not abrogate or diminish any contractual,

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statutory, or other legal obligation or right of any party to this Order, as to any

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third party, with respect to any Confidential Information. The fact that

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Information is designated “Confidential” or “Confidential-Attorneys’ Eyes

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Only” under this Order shall not be deemed to be determinative of what a trier

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of fact may determine to be confidential or proprietary. This Order shall be

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without prejudice to the right of any party to bring before the Court the question

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of:
(a)

whether any particular information is or is not Confidential

Information;
(b)

whether any particular information is or is not entitled to a greater

or lesser degree of protection than provided hereunder; or
(c)

whether any particular information is or is not relevant to any issue

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in this case, provided that in doing so the party complies with the foregoing

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procedures.

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25.

The terms of the Order are applicable to Confidential Information

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produced by a non-party, and Confidential Information produced by a non-party

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in connection with this litigation is protected by the remedies and relief

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provided by the Order. To protect its own Confidential Information, a party

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may ask a non-party to execute the Acknowledgement in the form of Exhibit A.

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26.

Within thirty (30) days following the termination of this action,

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including all appeals, each party shall: (1) return to opposing counsel all

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documents and materials designated by the opposing party as “Confidential” or

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“Confidential-Attorneys’ Eyes Only” and all copies of such documents and

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materials, and also shall destroy all abstracts, digests and analyses thereof,

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however stored or reproduced; or (2) destroy all documents and materials
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designated by the opposing party as “Confidential” or “Confidential-Attorneys’

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Eyes Only” and all copies of such documents and materials, destroy all

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abstracts, digests and analyses thereof, however stored or reproduced, and

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provide certification to opposing counsel that all such documents and materials

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have been destroyed. Notwithstanding the foregoing, counsel for each party

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may retain all pleadings, briefs, memoranda, motions, and other documents filed

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with the Court that refer to or incorporate Confidential Information, and will

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

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27.

Nothing in this Order is intended or should be construed as

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authorizing a party to disobey a lawful subpoena issued in another action or any

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other lawful request (such as one under the Patriots Act) by a governmental

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agency.

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28.

Transmission by electronic mail is acceptable for all notification

purposes within this Order.
29.

The restrictions provided for above shall not terminate upon the

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conclusion of this lawsuit. This Order is without prejudice to the right of a party

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hereto to seek relief from the Court, upon good cause shown, from any of the

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provisions or restrictions provided herein.

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IT IS SO ORDERED.

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Dated: December 15, 2015
Hon. John E. McDermott
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I,

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1.

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, declare:
I am employed as ________________________________ by

_____________________________________________________________.
2.

I have read the Stipulated Protective Order in Major

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Communications, Inc. v. CLK Group, Inc. et al., Case No. 2:14-cv-06690-BRO-

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JEM, pending in the United States District Court for the Central District of

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California, and have received a copy of the Stipulated Protective Order

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(“Protective Order”). I hereby agree to comply with and be bound by the terms

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and conditions of that Order unless and until modified by court order.

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3.

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

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“Confidential-Attorneys’ Eyes Only” information, as defined in the Protective

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Order, given to me only in a manner authorized by the Protective Order, and

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only to assist counsel in the litigation of this matter.

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4.

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

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“Confidential-Attorneys’ Eyes Only” information with anyone other than the

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persons authorized in accordance with paragraphs 12-13 of the Protective Order.

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5.

When I have completed my assigned or legal duties relating to this

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litigation, I will return or destroy all confidential documents and things that

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come into my possession, or that I have prepared relating to such documents and

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things, to counsel for the party by whom I am employed or retained. I

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acknowledge that such return or the subsequent destruction of such materials

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shall not relieve me from any of the continuing obligations imposed on me by

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the Protective Order.

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6.

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

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

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District of California with respect to enforcement of the Protective Order.
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7.

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

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“Confidential – Attorneys’ Eyes Only” information in any manner contrary to

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

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of court.

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

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Executed this

day of

, 20___ at

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Signature

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Printed Name

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