Rashad Brown v. Wincor Nixdorf Inc.

Filing 23

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh re Notice of Lodging 22 . See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Gordon & Rees LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 11 12 13 14 15 16 RASHAD BROWN, AN INDIVIDUAL, ) ) Plaintiff, ) ) vs. ) ) WINCOR NIXDORF, INC., A ) DELAWARE CORPORATION; ) ) Defendant. ) ) ) CASE NO. 2:14-cv-06962-JAK(PJWx) Original Complaint Filed Sept. 5, 2014 STANDING PROTECTIVE ORDER FOR CASES ASSIGNED TO JUDGE JOHN A. KRONSTADT Judge: Hon. John A. Kronstadt 17 18 19 (This Form Represents the Standing Protective Order For Cases Assigned to Judge John A. Kronstadt and Has Not Been Modified.) 20 21 22 1. PURPOSE AND LIMITS OF THIS ORDER Discovery in this action is likely to involve confidential, proprietary, or 23 private information requiring special protection from public disclosure and 24 from use for any purpose other than this litigation. Thus, the Court enters 25 this Protective Order. This Order does not confer blanket protections on all 26 disclosures or responses to discovery, and the protection it gives from 27 public disclosure and use extends only to the specific material entitled to 28 confidential treatment under the applicable legal principles. This Order -1STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 does not automatically authorize the filing under seal of material designated 2 under this Order. Instead, the parties must comply with Local Rule 79-5.1 3 and this Court’s Order Re Pilot Program for Under Seal Documents (See 4 Exhibit F) if they seek to file anything under seal. This Order does not 5 govern the use at trial of material designated under this Order. 6 2. DESIGNATING PROTECTED MATERIAL 7 2.1 Over-Designation Prohibited. Any party or non-party who “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” 10 or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) must only 11 Gordon & Rees LLP designates information or items for protection under this Order as 9 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 8 designate specific material that qualifies under the appropriate standards. 12 To the extent practicable, only those parts of documents, items, or oral or 13 written communications that require protection shall be designated. 14 Designations with a higher confidentiality level when a lower level would 15 suffice are prohibited. Mass, indiscriminate, or routinized designations are 16 prohibited. Unjustified designations expose the designator to sanctions, 17 including the Court’s striking all confidentiality designations made by that 18 designator. 19 Designation under this Order is allowed only if the designation is 20 necessary to protect material that, if disclosed to persons not authorized to 21 view it, would cause competitive or other recognized harm. Material may 22 not be designated if it has been made public, or if designation is otherwise 23 unnecessary to protect a secrecy interest. If a designator learns that 24 information or items that it designated for protection do not qualify for 25 protection at all or do not qualify for the level of protection initially asserted, 26 that designator must promptly notify all parties that it is withdrawing the 27 mistaken designation. 28 -2STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 2.2 Manner and Timing of Designations. Designation under this 2 Order requires the designator to affix the applicable legend 3 (“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES 4 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page 5 that contains protected material. For testimony given in deposition or other 6 proceeding, the designator shall specify all protected testimony and the 7 level of protection being asserted. It may make that designation during the 8 deposition or proceeding, or may invoke, on the record or by written notice 9 to all parties on or before the next business day, a right to have up to 21 10 Gordon & Rees LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 11 days from the deposition or proceeding to make its designation. 2.2.1 A party or non-party that makes original documents or materials 12 available for inspection need not designate them for protection until after 13 the inspecting party has identified which material it would like copied and 14 produced. During the inspection and before the designation, all material 15 shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. 16 After the inspecting party has identified the documents it wants copied and 17 produced, the producing party must designate the documents, or portions 18 thereof, that qualify for protection under this Order. 19 2.2.2 Parties shall give advance notice if they expect a deposition or 20 other proceeding to include designated material so that the other parties 21 can ensure that only authorized individuals are present at those 22 proceedings when such material is disclosed or used. The use of a 23 document as an exhibit at a deposition shall not in any way affect its 24 designation. Transcripts containing designated material shall have a legend 25 on the title page noting the presence of designated material, and the title 26 page shall be followed by a list of all pages (including line numbers as 27 appropriate) that have been designated, and the level of protection being 28 asserted. The designator shall inform the court reporter of these -3STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 requirements. Any transcript that is prepared before the expiration of the 2 21-day period for designation shall be treated during that period as if it had 3 been designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY 4 unless otherwise agreed. After the expiration of the 21-day period, the 5 transcript shall be treated only as actually designated. 6 2.3 Inadvertent Failures to Designate. An inadvertent failure to 7 designate does not, standing alone, waive protection under this Order. 8 Upon timely assertion or correction of a designation, all recipients must 9 make reasonable efforts to ensure that the material is treated according to Gordon & Rees LLP this Order. 11 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 10 3. CHALLENGING CONFIDENTIALITY DESIGNATIONS 12 All challenges to confidentiality designations shall proceed under 13 Local Rule 37-1 through Local Rule 37-4. 14 4. ACCESS TO DESIGNATED MATERIAL 15 4.1 Basic Principles. A receiving party may use designated material 16 only for this litigation. Designated material may be disclosed only to the 17 categories of persons and under the conditions described in this Order. 18 4.2 Disclosure of CONFIDENTIAL Material Without Further 19 Approval. Unless otherwise ordered by the Court or permitted in writing by 20 the designator, a receiving party may disclose any material designated 21 CONFIDENTIAL only to: 22 4.2.1 The receiving party’s outside counsel of record in this action 23 and employees of outside counsel of record to whom disclosure is 24 reasonably necessary; 25 4.2.2 The officers, directors, and employees of the receiving party to 26 whom disclosure is reasonably necessary, and who have signed the 27 Agreement to Be Bound (Exhibit E-1); 28 -4STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 4.2.3 Experts retained by the receiving party’s outside counsel of 2 record to whom disclosure is reasonably necessary, and who have signed 3 the Agreement to Be Bound (Exhibit E-1); 4 4.2.4 The Court and its personnel; 5 4.2.5 Outside court reporters and their staff, professional jury or trial 6 consultants, and professional vendors to whom disclosure is reasonably 7 necessary, and who have signed the Agreement to Be Bound (Exhibit E-1); 8 4.2.6 During their depositions, witnesses in the action to whom 9 disclosure is reasonably necessary and who have signed the Agreement to 10 Gordon & Rees LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 11 Be Bound (Exhibit E-1); and 4.2.7 The author or recipient of a document containing the material, 12 or a custodian or other person who otherwise possessed or knew the 13 information. 14 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES 15 ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without 16 Further Approval. Unless permitted in writing by the designator, a 17 receiving party may disclose material designated HIGHLY CONFIDENTIAL 18 – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE 19 CODE without further approval only to: 20 4.3.1 The receiving party’s outside counsel of record in this action 21 and employees of outside counsel of record to whom it is reasonably 22 necessary to disclose the information; 23 4.3.2 The Court and its personnel; 24 4.3.3 Outside court reporters and their staff, professional jury or trial 25 consultants, and professional vendors to whom disclosure is reasonably 26 necessary, and who have signed the Agreement to Be Bound (Exhibit E-1); 27 and 4.3.4 The author or recipient of a document containing the material, or 28 -5STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 a custodian or other person who otherwise possessed or knew the 2 information. 3 4.4 Procedures for Approving or Objecting to Disclosure of 4 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY 5 CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or 6 Experts. Unless agreed to in writing by the designator: 7 4.4.1 A party seeking to disclose to in-house counsel any material 8 designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first 9 make a written request to the designator providing the full name of the in- Gordon & Rees LLP house counsel, the city and state of such counsel’s residence, and such 11 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 10 counsel’s current and reasonably foreseeable future primary job duties and 12 responsibilities in sufficient detail to determine present or potential 13 involvement in any competitive decision-making. In-house counsel are not 14 authorized to receive material designated HIGHLY CONFIDENTIAL – 15 SOURCE CODE. 16 4.4.2 A party seeking to disclose to an expert retained by outside 17 counsel of record any information or item that has been designated 18 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY 19 CONFIDENTIAL – SOURCE CODE must first make a written request to the 20 designator that (1) identifies the general categories of HIGHLY 21 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL 22 – SOURCE CODE information that the receiving party seeks permission to 23 disclose to the expert, (2) sets forth the full name of the expert and the city 24 and state of his or her primary residence, (3) attaches a copy of the 25 expert’s current resume, (4) identifies the expert’s current employer(s), (5) 26 identifies each person or entity from whom the expert has received 27 compensation or funding for work in his or her areas of expertise (including 28 in connection with litigation) in the past five years, and (6) identifies (by -6STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 name and number of the case, filing date, and location of court) any 2 litigation where the expert has offered expert testimony, including by 3 declaration, report, or testimony at deposition or trial, in the past five years. 4 If the expert believes any of this information at (4) - (6) is subject to a 5 confidentiality obligation to a third party, then the expert should provide 6 whatever information the expert believes can be disclosed without violating 7 any confidentiality agreements, and the party seeking to disclose the 8 information to the expert shall be available to meet and confer with the 9 designator regarding any such confidentiality obligations. Gordon & Rees LLP 4.4.3 A party that makes a request and provides the information 11 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 10 specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material 12 to the identified in-house counsel or expert unless, within seven days of 13 delivering the request, the party receives a written objection from the 14 designator providing detailed grounds for the objection. 15 4.4.4 All challenges to objections from the designator shall proceed 16 under Local Rule 37-1 through Local Rule 37-4. 17 5. SOURCE CODE 18 5.1 Designation of Source Code. If production of source code is 19 necessary, a party may designate it as HIGHLY CONFIDENTIAL – 20 SOURCE CODE if it is, or includes, confidential, proprietary, or trade secret 21 source code. 22 5.2 Location and Supervision of Inspection. Any HIGHLY 23 CONFIDENTIAL – SOURCE CODE produced in discovery shall be made 24 available for inspection, in a format allowing it to be reasonably reviewed 25 and searched, during normal business hours or at other mutually agreeable 26 times, at an office of the designating party’s counsel or another mutually 27 agreeable location. The source code shall be made available for inspection 28 on a secured computer in a secured room, and the inspecting party shall -7STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 not copy, remove, or otherwise transfer any portion of the source code onto 2 any recordable media or recordable device. The designator may visually 3 monitor the activities of the inspecting party’s representatives during any 4 source code review, but only to ensure that there is no unauthorized 5 recording, copying, or transmission of the source code. 6 5.3 Paper Copies of Source Code Excerpts. The inspecting party reasonably necessary for the preparation of court filings, pleadings, expert 9 reports, other papers, or for deposition or trial. The designator shall provide 10 all such source code in paper form, including Bates numbers and the label 11 Gordon & Rees LLP may request paper copies of limited portions of source code that are 8 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 7 “HIGHLY CONFIDENTIAL – SOURCE CODE.” 12 5.4 Access Record. The inspecting party shall maintain a record of 13 any individual who has inspected any portion of the source code in 14 electronic or paper form, and shall maintain all paper copies of any printed 15 portions of the source code in a secured, locked area. The inspecting party 16 shall not convert any of the information contained in the paper copies into 17 any electronic format other than for the preparation of a pleading, exhibit, 18 expert report, discovery document, deposition transcript, or other Court 19 document. Any paper copies used during a deposition shall be retrieved at 20 the end of each day and must not be left with a court reporter or any other 21 unauthorized individual. 22 6. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 23 IN OTHER LITIGATION 24 6.1 Subpoenas and Court Orders. This Order in no way excuses 25 noncompliance with a lawful subpoena or court order. The purpose of the 26 duties described in this section is to alert the interested parties to the 27 existence of this Order and to give the designator an opportunity to protect 28 its confidentiality interests in the court where the subpoena or order -8STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 2 issued. 6.2 Notification Requirement. If a party is served with a subpoena or 3 a court order issued in other litigation that compels disclosure of any 4 information or items received by that party in this action and designated in 5 this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY 6 EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that party 7 must do the following. 8 9 10 6.2.1 Promptly notify the designator in writing. Such notification shall include a copy of the subpoena or court order. 6.2.2 Promptly notify in writing the party who caused the subpoena or Gordon & Rees LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 11 order to issue in the other litigation that some or all of the material covered 12 by the subpoena or order is subject to this Order. Such notification shall 13 include a copy of this Order. 14 15 16 6.2.3 Cooperate with all reasonable procedures sought by the designator whose material may be affected. 6.3 Wait For Resolution of Protective Order. If the designator 17 promptly seeks a protective order, the party served with the subpoena or 18 court order shall not produce any information designated in this action as 19 CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or 20 HIGHLY CONFIDENTIAL – SOURCE CODE before a determination by the 21 court where the subpoena or order issued, unless the party has obtained 22 the designator’s permission. The designator shall bear the burden and 23 expense of seeking protection of its confidential material in that court. 24 7. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 25 If a receiving party learns that, by inadvertence or otherwise, it has 26 disclosed designated material to any person or in any circumstance not 27 authorized under this Order, it must immediately (1) notify in writing the 28 designator of the unauthorized disclosures, (2) use its best efforts to -9STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 retrieve all unauthorized copies of the designated material, (3) inform the 2 person or persons to whom unauthorized disclosures were made of all the 3 terms of this Order, and (4) use reasonable efforts to have such person or 4 persons execute the Agreement to Be Bound (Exhibit E-1). 5 8. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a producing party gives notice that certain inadvertently 8 produced material is subject to a claim of privilege or other protection, the 9 obligations of the receiving parties are those set forth in Fed. R. Civ. P. Gordon & Rees LLP 26(b)(5)(B). This provision is not intended to modify whatever procedure 11 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 10 may be established in an e-discovery order that provides for production 12 without prior privilege review pursuant to Fed. R. Evid. 502(d) and (e). 13 9. FILING UNDER SEAL 14 Without written permission from the designator or a Court order, a 15 party may not file in the public record in this action any designated material. 16 A party seeking to file under seal any designated material must comply with 17 Local Rule 79-1. Filings may be made under seal only pursuant to a court 18 order authorizing the sealing of the specific material at issue. The fact that 19 a document has been designated under this Order is insufficient to justify 20 filing under seal. Instead, parties must explain the basis for confidentiality 21 of each document sought to be filed under seal. Because a party other than 22 the designator will often be seeking to file designated material, cooperation 23 between the parties in preparing, and in reducing the number and extent 24 of, requests for under seal filing is essential. If a receiving party’s request 25 to file designated material under seal pursuant to Local Rule 79-5.1 is 26 denied by the Court, then the receiving party may file the material in the 27 public record unless (1) the designator seeks reconsideration within four 28 days of the denial, or (2) as otherwise instructed by the Court. -10STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 2 10. FINAL DISPOSITION Within 60 days after the final disposition of this action, each party material, including all copies, abstracts, compilations, summaries, and any 5 other format reproducing or capturing any designated material. The 6 receiving party must submit a written certification to the designator by the 7 60-day deadline that (1) identifies (by category, where appropriate) all the 8 designated material that was returned or destroyed, and (2) affirms that the 9 receiving party has not retained any copies, abstracts, compilations, 10 summaries, or any other format reproducing or capturing any of the 11 Gordon & Rees LLP shall return all designated material to the designator or destroy such 4 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 3 designated material. This provision shall not prevent counsel from retaining 12 an archival copy of all pleadings, motion papers, trial, deposition, and 13 hearing transcripts, legal memoranda, correspondence, deposition and trial 14 exhibits, expert reports, attorney work product, and consultant and expert 15 work product, even if such materials contain designated material. Any such 16 archival copies remain subject to this Order. 17 IT IS SO ORDERED. 18 Dated: 12/12/14 19 _________________________________ 20 HON. PATRICK J. WALSH 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -11STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) AGREEMENT TO BE BOUND (EXHIBIT E-1) 1 2 I, _____________________________ [print or type full name], of 3 _________________ [print or type full address], declare under penalty of 4 perjury that I have read in its entirety and understand the Protective Order 5 that was issued by the United States District Court for the Central District of 6 California on _______ [date] in the case of Rashad Brown v. Wincor 7 Nixdorf, Inc., 2:14-cv-06962-JAK(PJWx). 8 I agree to comply with and to be bound by all the terms of this comply could expose me to sanctions and punishment for contempt. I 11 Gordon & Rees LLP Protective Order, and I understand and acknowledge that failure to so 10 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 9 solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Protective Order to any person or entity except in 13 strict compliance with this Order. 14 I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for the purpose of enforcing this 16 Order, even if such enforcement proceedings occur after termination of this 17 action. 18 I hereby appoint __________________________ [print or type full 19 name] of 20 _______________________________________ [print or type full address 21 and telephone number] as my California agent for service of process in 22 connection with this action or oh any proceedings related to enforcement of 23 this Order. 24 Date: ___________________________ 25 City and State where sworn and signed: 26 _________________________________ 27 Printed name: ____________________ 28 Signature: _______________________ -12STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx) 1 2 3 4 5 6 7 8 CERTIFICATE OF E-FILE SERVICE I hereby certify that on December 11, 2014, a copy of the foregoing document and all attachments were filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail as indicated below. Parties may access this filing through the Court’s electronic filing system. Michael L. Tracy, Esq., SBN 237779 Law Offices Of Michael Tracy 2030 Main Street, Suite 1300 Irvine, Ca 92614 T: (949) 260-9171 /F: (866) 365-3051 mtracy@michaeltracylaw.com Attorneys for Plaintiff 9 10 Gordon & Rees LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 11 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and executed on December 11, 2014, in the City of San Diego, California. Julie L. DeVercelly Julie L. DeVercelly 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1099826/21552493v.1 -13STANDING PROTECTIVE ORDER 2:14-cv-06962-JAK(PJWx)

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