Pegasus Imports, LLC v. PT. Wahyu Pradana Binamulia et al

Filing 27

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 25 . See document for details. (yb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 PEGASUS IMPORTS, LLC, a California limited liability company, 12 Plaintiff, 13 v. 14 PT. WAHYU PRADANA 15 BINAMULIA, an Indonesian company, and DOES 1 TO 50, 16 inclusive, 17 CASE NO. 2:14-cv-06843-ODW (AJWx) DISCOVERY MATTER Honorable Andrew J. Wistrich STIPULATED PROTECTIVE ORDER Defendants. 18 PT. WAHYU PRADANA 19 BINAMULIA, an Indonesian 20 company, and DOES 1 TO 50, inclusive, 21 Counterclaimant, 22 v. 23 PEGASUS IMPORTS, LLC, a 24 California limited liability company, Counterdefendant. 25 26 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may 5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this 7 Order does not confer blanket protections on all disclosures or responses to 8 discovery and that the protection it affords from public disclosure and use extends 9 only to the limited information or items that are entitled to confidential treatment 10 under the applicable legal principles. The parties further acknowledge, as set forth 11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 12 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 13 procedures that must be followed and the standards that will be applied when a 14 party seeks permission from the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve trade secrets, customer and pricing lists and 17 other valuable research, development, commercial, financial, technical and/or 18 proprietary information for which special protection from public disclosure and 19 from use for any purpose other than prosecution of this action is warranted. Such 20 confidential and proprietary materials and information consist of, among other 21 things, confidential business or financial information, information regarding 22 confidential business practices, or other confidential research, development, or 23 commercial information (including information implicating privacy rights of third 24 parties), information otherwise generally unavailable to the public, or which may 25 be privileged or otherwise protected from disclosure under state or federal statutes, 26 court rules, case decisions, or common law. Accordingly, to expedite the flow of 27 information, to facilitate the prompt resolution of disputes over confidentiality of 28 discovery materials, to adequately protect information the parties are entitled to 2 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 keep confidential, to ensure that the parties are permitted reasonable necessary uses 2 of such material in preparation for and in the conduct of trial, to address their 3 handling at the end of the litigation, and serve the ends of justice, a protective order 4 for such information is justified in this matter. It is the intent of the parties that 5 information will not be designated as confidential for tactical reasons and that 6 nothing be so designated without a good faith belief that it has been maintained in 7 a confidential, non-public manner, and there is good cause why it should not be 8 part of the public record of this case. 9 2. 10 DEFINITIONS 2.1 Action: the pending federal lawsuit entitled Pegasus Imports, LLC v. 11 PT. Wahyu Pradana Binamulia and DOES 1 through 50, Case No. 2:14-cv-0684312 ODW (AJWx), the First Amended Counterclaims by PT. Wahyu Pradana 13 Binamulia against Pegasus Imports, LLC, and all other consolidated or related 14 actions. 15 2.2 Challenging Party: a Party or Non-Party that challenges the 16 designation of information or items under this Order. 17 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 18 how it is generated, stored or maintained) or tangible things that qualify for 19 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 20 the Good Cause Statement. 21 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as 22 their support staff). 23 2.5 Designating Party: a Party or Non-Party that designates information 24 or items that it produces in disclosures or in responses to discovery as 25 “CONFIDENTIAL.” 26 2.6 Disclosure or Discovery Material: all items or information, regardless 27 of the medium or manner in which it is generated, stored, or maintained (including, 28 3 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 among other things, testimony, transcripts, and tangible things), that are produced 2 or generated in disclosures or responses to discovery in this matter. 3 2.7 Expert: a person with specialized knowledge or experience in a 4 matter pertinent to the litigation who has been retained by a Party or its counsel to 5 serve as an expert witness or as a consultant in this Action. 6 2.8 House Counsel: attorneys who are employees of a party to this 7 Action. House Counsel does not include Outside Counsel of Record or any other 8 outside counsel. 9 2.9 Non-Party: any natural person, partnership, corporation, association, 10 or other legal entity not named as a Party to this action. 11 2.10 Outside Counsel of Record: attorneys who are not employees of a 12 party to this Action but are retained to represent or advise a party to this Action 13 and have appeared in this Action on behalf of that party or are affiliated with a law 14 firm which has appeared on behalf of that party, and includes support staff. 15 2.11 Party: any party to this Action, including all of its officers, directors, 16 employees, consultants, retained experts, and Outside Counsel of Record (and their 17 support staffs). 18 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 19 Discovery Material in this Action. 20 2.13 Professional Vendors: persons or entities that provide litigation 21 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 22 demonstrations, and organizing, storing, or retrieving data in any form or medium) 23 and their employees and subcontractors. 24 2.14 Protected Material: any Disclosure or Discovery Material that is 25 designated as “CONFIDENTIAL.” 26 2.15 Receiving Party: a Party that receives Disclosure or Discovery 27 Material from a Producing Party. 28 4 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only 3 Protected Material (as defined above), but also (1) any information copied or 4 extracted from Protected Material; (2) all copies, excerpts, summaries, or 5 compilations of Protected Material; and (3) any testimony, conversations, or 6 presentations by Parties or their Counsel that might reveal Protected Material. 7 Any use of Protected Material at trial shall be governed by the orders of the 8 trial judge. This Order does not govern the use of Protected Material at trial. 9 4. 10 DURATION Even after final disposition of this litigation, the confidentiality obligations 11 imposed by this Order shall remain in effect until a Designating Party agrees 12 otherwise in writing or a court order otherwise directs. Final disposition shall be 13 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 14 with or without prejudice; and (2) final judgment herein after the completion and 15 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 16 including the time limits for filing any motions or applications for extension of 17 time pursuant to applicable law. 18 5. DESIGNATING PROTECTED MATERIAL 19 5.1 Exercise of Restraint and Care in Designating Material for Protection. 20 Each Party or Non-Party that designates information or items for protection under 21 this Order must take care to limit any such designation to specific material that 22 qualifies under the appropriate standards. The Designating Party must designate 23 for protection only those parts of material, documents, items, or oral or written 24 communications that qualify so that other portions of the material, documents, 25 items, or communications for which protection is not warranted are not swept 26 unjustifiably within the ambit of this Order. 27 Mass, indiscriminate, or routinized designations are prohibited. 28 Designations that are shown to be clearly unjustified or that have been made for an 5 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 improper purpose (e.g., to unnecessarily encumber the case development process 2 or to impose unnecessary expenses and burdens on other parties) may expose the 3 Designating Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it 5 designated for protection do not qualify for protection, that Designating Party must 6 promptly notify all other Parties that it is withdrawing the inapplicable designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 9 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 10 under this Order must be clearly so designated before the material is disclosed or 11 produced. 12 13 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 14 documents, but excluding transcripts of depositions or other pretrial or trial 15 proceedings), that the Producing Party affix at a minimum, the legend 16 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 17 contains protected material. If only a portion or portions of the material on a page 18 qualifies for protection, the Producing Party also must clearly identify the 19 protected portion(s) (e.g., by making appropriate markings in the margins). 20 A Party or Non-Party that makes original documents available for inspection 21 need not designate them for protection until after the inspecting Party has indicated 22 which documents it would like copied and produced. During the inspection and 23 before the designation, all of the material made available for inspection shall be 24 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 25 documents it wants copied and produced, the Producing Party must determine 26 which documents, or portions thereof, qualify for protection under this Order. 27 Then, before producing the specified documents, the Producing Party must affix 28 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 6 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 only a portion or portions of the material on a page qualifies for protection, the 2 Producing Party also must clearly identify the protected portion(s) (e.g., by making 3 appropriate markings in the margins). (b) for testimony given in depositions that the Designating Party 4 5 identify the Disclosure or Discovery Material on the record, before the close of the 6 deposition all protected testimony. (c) for information produced in some form other than documentary 7 8 and for any other tangible items, that the Producing Party affix in a prominent 9 place on the exterior of the container or containers in which the information is 10 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 11 information warrants protection, the Producing Party, to the extent practicable, 12 shall identify the protected portion(s). 13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive 15 the Designating Party’s right to secure protection under this Order for such 16 material. Upon timely correction of a designation, the Receiving Party must make 17 reasonable efforts to assure that the material is treated in accordance with the 18 provisions of this Order. 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 24 resolution process under Local Rule 37.1 et seq. Any discovery motion must 25 strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3. 26 6.3 Burden. The burden of persuasion in any such challenge proceeding 27 shall be on the Designating Party. Frivolous challenges, and those made for an 28 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 7 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 other parties) may expose the Challenging Party to sanctions. Unless the 2 Designating Party has waived or withdrawn the confidentiality designation, all 3 parties shall continue to afford the material in question the level of protection to 4 which it is entitled under the Producing Party’s designation until the Court rules on 5 the challenge. 6 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7 7.1 Basic Principles. A Receiving Party may use Protected Material that 8 is disclosed or produced by another Party or by a Non-Party in connection with this 9 Action only for prosecuting, defending, or attempting to settle this Action. Such 10 Protected Material may be disclosed only to the categories of persons and under 11 the conditions described in this Order. When the Action has been terminated, a 12 Receiving Party must comply with the provisions in section 13 below (FINAL 13 DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving Party at a 15 location and in a secure manner that ensures that access is limited to the persons 16 authorized under this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the court or permitted in writing by the Designating Party, a 19 Receiving Party may disclose any information or item designated 20 “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 22 well as employees of said Outside Counsel of Record to whom it is reasonably 23 necessary to disclose the information for this Action; 24 (b) the officers, directors, and employees (including House Counsel) 25 of the Receiving Party to whom disclosure is reasonably necessary for this Action; 26 (c) Experts (as defined in this Order) of the Receiving Party to whom 27 disclosure is reasonably necessary for this Action and who have signed the 28 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 (d) the court and its personnel; 2 (e) court reporters and their staff; 3 (f) professional jury or trial consultants, mock jurors, and Professional 4 Vendors to whom disclosure is reasonably necessary for this Action and who have 5 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 6 (g) the author or recipient of a document containing the information or 7 a custodian or other person who otherwise possessed or knew the information; 8 (h) during their depositions, witnesses, and attorneys for witnesses, in 9 the Action to whom disclosure is reasonably necessary provided: (1) the deposing 10 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 11 they will not be permitted to keep any confidential information unless they sign the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 13 agreed by the Designating Party or ordered by the court. Pages of transcribed 14 deposition testimony or exhibits to depositions that reveal Protected Material may 15 be separately bound by the court reporter and may not be disclosed to anyone 16 except as permitted under this Stipulated Protective Order; and 17 (i) any mediator or settlement officer, and their supporting personnel, 18 mutually agreed upon by any of the parties engaged in settlement discussions. 19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED 20 PRODUCED IN OTHER LITIGATION 21 If a Party is served with a subpoena or a court order issued in other litigation 22 that compels disclosure of any information or items designated in this Action as 23 “CONFIDENTIAL,” that Party must: 24 (a) promptly notify in writing the Designating Party. Such notification shall 25 include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order to 27 issue in the other litigation that some or all of the material covered by the subpoena 28 9 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 or order is subject to this Protective Order. Such notification shall include a copy 2 of this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be pursued 4 by the Designating Party whose Protected Material may be affected. 5 If the Designating Party timely seeks a protective order, the Party served 6 with the subpoena or court order shall not produce any information designated in 7 this action as “CONFIDENTIAL” before a determination by the court from which 8 the subpoena or order issued, unless the Party has obtained the Designating Party’s 9 permission. The Designating Party shall bear the burden and expense of seeking 10 protection in that court of its confidential material and nothing in these provisions 11 should be construed as authorizing or encouraging a Receiving Party in this Action 12 to disobey a lawful directive from another court. 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non- 16 Party in this Action and designated as “CONFIDENTIAL.” Such information 17 produced by Non-Parties in connection with this litigation is protected by the 18 remedies and relief provided by this Order. Nothing in these provisions should be 19 construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to 21 produce a Non-Party’s confidential information in its possession, and the Party is 22 subject to an agreement with the Non-Party not to produce the Non-Party’s 23 confidential information, then the Party shall: 24 (1) promptly notify in writing the Requesting Party and the Non- 25 Party that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; 27 28 10 [PROPOSED] STIPULATED PROTECTIVE ORDER (2) promptly provide the Non-Party with a copy of the Stipulated 1 2 Protective Order in this Action, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and (3) make the information requested available for inspection by the 4 5 Non-Party, if requested. 6 (c) If the Non-Party fails to seek a protective order from this court within 7 14 days of receiving the notice and accompanying information, the Receiving 8 Party may produce the Non-Party’s confidential information responsive to the 9 discovery request. If the Non-Party timely seeks a protective order, the Receiving 10 Party shall not produce any information in its possession or control that is subject 11 to the confidentiality agreement with the Non-Party before a determination by the 12 court. Absent a court order to the contrary, the Non-Party shall bear the burden 13 and expense of seeking protection in this court of its Protected Material. 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 15 If a Receiving Party learns that, by inadvertence or otherwise, it has 16 disclosed Protected Material to any person or in any circumstance not authorized 17 under this Stipulated Protective Order, the Receiving Party must immediately (a) 18 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 19 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 20 the person or persons to whom unauthorized disclosures were made of all the terms 21 of this Order, and (d) request such person or persons to execute the 22 “Acknowledgment and Agreement to Be Bound” that is attached hereto as 23 Exhibit A. 24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 25 OTHERWISE PROTECTED MATERIAL 26 When a Producing Party gives notice to Receiving Parties that certain 27 inadvertently produced material is subject to a claim of privilege or other 28 protection, the obligations of the Receiving Parties are those set forth in Federal 11 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 2 whatever procedure may be established in an e-discovery order that provides for 3 production without prior privilege review. 4 In addition, the parties agree on the following procedure: If a party, through 5 inadvertence, produces any document or information that it believes is immune 6 from discovery pursuant to the attorney-client privilege and/or work product 7 doctrine/privilege, such production will not be deemed a waiver of those 8 privileges, and the Producing Party may give written notice to the Receiving Party 9 that the document or information produced is deemed privileged. The Receiving 10 Party must immediately return the document and all copies. The Producing Party 11 will then add those documents to its privilege log. The return of the document(s) 12 and/or information to the Producing Party will not preclude the Receiving Party 13 from later moving the Court to compel production of the returned documents 14 and/or information. 15 12. MISCELLANEOUS 16 12.1 Right to Further Relief. Nothing in this Order abridges the right of 17 any person to seek its modification by the Court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order, no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in 21 this Stipulated Protective Order. Similarly, no Party waives any right to object on 22 any ground to use in evidence of any of the material covered by this Protective 23 Order. 24 12.3 Filing Protected Material. A Party that seeks to file under seal any 25 Protected Material must comply with Civil Local Rule 79-5. Protected Material 26 may only be filed under seal pursuant to a court order authorizing the sealing of the 27 specific Protected Material at issue. If a Party’s request to file Protected Material 28 12 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 under seal is denied by the court, then the Receiving Party may file the information 2 in the public record unless otherwise instructed by the court. 3 13. FINAL DISPOSITION 4 After the final disposition of this Action, as defined in paragraph 4, within 5 60 days of a written request by the Designating Party, each Receiving Party must 6 return all Protected Material to the Producing Party or destroy such material. As 7 used in this subdivision, “all Protected Material” includes all copies, abstracts, 8 compilations, summaries, and any other format reproducing or capturing any of the 9 Protected Material. Whether the Protected Material is returned or destroyed, the 10 Receiving Party must submit a written certification to the Producing Party (and, if 11 not the same person or entity, to the Designating Party) by the 60 day deadline that 12 (1) identifies (by category, where appropriate) all the Protected Material that was 13 returned or destroyed and (2) affirms that the Receiving Party has not retained any 14 copies, abstracts, compilations, summaries or any other format reproducing or 15 capturing any of the Protected Material. Notwithstanding this provision, Counsel 16 are entitled to retain an archival copy of all pleadings, motion papers, trial, 17 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 18 and trial exhibits, expert reports, attorney work product, and consultant and expert 19 work product, even if such materials contain Protected Material. Any such 20 archival copies that contain or constitute Protected Material remain subject to this 21 Protective Order as set forth in Section 4 (DURATION). 22 23 24 25 26 27 28 13 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 14. Any violation of this Order may be punished by any and all appropriate 2 measures including, without limitation, contempt proceedings and/or monetary 3 sanctions. 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 DATED: December 3, 2014 8 9 NEUFELD MARKS A Professional Corporation Timothy L. Neufeld Nikki Ma 10 11 By: /s/ Nikki Ma Nikki Ma Attorneys for Plaintiff and CounterDefendant Pegasus Imports, LLC 12 13 14 15 DATED: December 3, 2014 16 17 MITCHELL SILBERBERG & KNUPP LLP Susan Kohn Ross Patricia H. Benson Christopher A. Elliott 18 19 20 21 22 23 By: /s/ Patricia H. Benson [w/permission] Patricia H. Benson Attorneys for Defendant and Counterclaimant PT. Wahyu Pradana Binamulia 24 25 26 27 28 14 [PROPOSED] STIPULATED PROTECTIVE ORDER ORDER 1 2 Good Cause appearing, the Court approves and enters the Stipulated 3 Protective Order. IT IS SO ORDERED. 4 5 DATED: _____12/4/14___________ 6 7 8 9 ____________________________________ Hon. Andrew J. Wistrich United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 [PROPOSED] STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _____________________________ [print or type full address], declare under 6 penalty of perjury that I have read in its entirety and understand the Stipulated 7 Protective Order that was issued by the United States District Court for the Central 8 District of California on _______________ [date] in the case of Pegasus Imports, 9 LLC v. PT. Wahyu Pradana Binamulia, et al., Case No. 2:14-cv-06843-ODW 10 (AJWx). I agree to comply with and to be bound by all the terms of this Stipulated 11 Protective Order and I understand and acknowledge that failure to so comply could 12 expose me to sanctions and punishment in the nature of contempt. I solemnly 13 promise that I will not disclose in any manner any information or item that is 14 subject to this Stipulated Protective Order to any person or entity except in strict 15 compliance with the provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for 17 the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. 20 21 Date: ______________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: _______________________________ 24 25 Signature: __________________________________ 26 27 28 16 [PROPOSED] STIPULATED PROTECTIVE ORDER

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