Cellco Partnership v. Toro Ride, Inc. et al

Filing 70

STIPULATED PROTECTIVE ORDER 68 by Magistrate Judge Paul L. Abrams. *See Order for details.* (es)

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DAVID P. BEITCHMAN (SBN 198953)
[e-mail]
ROUBEN VAROZIAN (SBN 258366)
[e-mail]
ANDRE BONIADI (SBN 266412)
[e-mail]
BEITCHMAN & ZEKIAN, P.C.
16130 VENTURA BLVD., SUITE 570
ENCINO, CALIFORNIA 91436
TELEPHONE: [phone]
FACSIMILE: [phone]
Attorneys for Defendants,
TORO RIDE, INC., KAREN KEVIN GALSTIAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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)
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)
)
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Plaintiff,
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vs.
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TORO RIDE, INC., KAREN KEVIN )
)
GALSTIAN; and DOES 1 through 10, )
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Defendants.
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)
CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS,

Case No. 2:15-cv-01187-DSF-PLAx
TO BE HEARD BY THE
MAGISTRATE JUDGE ASSIGNED
TO THE CASE PER L.R. 64-4
STIPULATED PROTECTIVE
ORDER

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Plaintiff CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS and

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Defendants TORO RIDE, INC. and KAREN KEVIN GALSTIAN, by and through

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their counsel of record, hereby stipulate as follows:

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[PROPOSED] STPULATED PROTECTIVE ORDER

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GOOD CAUSE STATEMENT

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Good cause exists to enter a protective order pursuant to the terms herein. In

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particular, a protective order will ensure the production and sharing of highly sensitive

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and confidential information and documentation thereby promoting fairness and

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efficiency in the litigation. In addition, this protective order will protect against the

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public disclosure of private information pertaining to third parties (i.e. social security

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numbers, tax information, payroll statements, etc.), tax documents pertaining to a non-

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public entity, marketing strategies and potential trade secrets pertaining to third party

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marketing companies, internal corporate books and records Toro Ride, Inc. that may

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include potentially sensitive information pertaining to its current and/or former

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shareholders, bank account statements that may reveal the details of money

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transactions involving third parties, and previously marked confidential

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documentation including Toro Ride, Inc.’s non-public business plan packets.

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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production

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of documents for which special protection from public disclosure and from use for any

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purpose other than prosecuting this litigation may be warranted, namely, private tax

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documentation, confidential agreements between Toro Ride, Inc. and third parties,

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sensitive marketing material, employee payroll documentation, employee health

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insurance documents, internal corporate books and records, bank account statements,

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and non-public company business plan packets.

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Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from

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the court to file material under seal.

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2.

DEFINITIONS

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2.1

Challenging Party: a Party or Non-Party that challenges the designation of

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information or items under this Order.

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2.2

“CONFIDENTIAL” Information or Items: information (regardless of

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

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under Federal Rule of Civil Procedure 26(c), namely, private tax documentation,

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confidential agreements between Toro Ride, Inc. and third parties, sensitive marketing

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material, employee payroll documentation, employee health insurance documents,

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internal corporate books and records, bank account statements, and non-public

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company business plan packets.

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2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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

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

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“CONFIDENTIAL.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this action.
2.7

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House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.
2.8

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Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party

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to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only

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

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

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material. However, the protections

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conferred by this Stipulation and Order do not cover the following information: (a)

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any information that is in the public domain at the time of disclosure to a Receiving

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Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part

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of the public record through trial or otherwise; and (b) any information known to the

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Receiving Party prior to the disclosure or obtained by the Receiving Party after the

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disclosure from a source who obtained the information lawfully and under no

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obligation of confidentiality to the Designating Party. Any use of Protected Material at

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trial shall be governed by a separate agreement or order.

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4.

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DURATION
Once this case proceeds to trial, all of the court-filed information that is to be

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introduced and was previously designated as confidential and/or kept and maintained

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pursuant to the terms of this protective order becomes public and will be

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presumptively available to all members of the public, including the press, unless

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compelling reasons supported by specific factual findings to proceed otherwise are

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made to the District Judge in advance of the trial.

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However, with the exception of documents previously designated as

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confidential and/or kept and maintained pursuant to the terms of this protective order

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that become public as a result of introducing at the time of trial, the confidentiality

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obligations imposed by this Order shall remain in effect even after final disposition of

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this litigation, until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of

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all claims and defenses in this action, with or without prejudice; and (2) final

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judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this action, including the time limits for filing any

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motions or applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify – so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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purpose (e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the Designating

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Party to sanctions.

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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

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produced. However, the Parties agree to be bound by the terms of this Stipulated

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Protective Order pending entry of the Order hereon.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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

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

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

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

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

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it wants copied and produced, the Producing Party must determine which documents,

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

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend

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to each page that contains Protected Material. If only a portion or portions of the

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

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

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margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive the

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

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

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality during the discovery period established by the District

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Judge. Unless a prompt challenge to a Designating Party’s confidentiality designation

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is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its

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right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and

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must begin the process by conferring directly (in voice to voice dialogue; other forms

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of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party

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is unwilling to participate in the meet and confer process in a timely manner.
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Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Designating Party shall file and serve a motion to retain

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confidentiality within 14 days of the parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Such a motion will be brought as a

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joint stipulation as required by Local Rule 37-2. Each such motion must be

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accompanied by a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21

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days (or 14 days, if applicable) shall automatically waive the confidentiality

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designation for each challenged designation.
In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so, including a

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challenge to the designation of a deposition transcript or any portions thereof. Such a

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motion will be brought as a joint stipulation as required by Local Rule 37-2. Any

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motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the

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

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived

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the confidentiality designation by failing to file a motion to retain confidentiality as

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described above, all parties shall continue to afford the material in question the level

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of protection to which it is entitled under the Producing Party’s designation until the

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court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
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7.1

Basic Principles. A Receiving Party may use Protected Material that is

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

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 13 below (FINAL DISPOSITION).

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

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A;

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

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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

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

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disclosure is reasonably necessary for this litigation and who have signed the

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

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a

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Non-Party in this action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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

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

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confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party

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

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

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

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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party.
(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving

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

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

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Party shall not produce any information in its possession or control that is subject to

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

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

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of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted to

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the court.

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12.

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

person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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

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

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

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12.3 Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any Protected Material.

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A Party that seeks to file under seal any Protected Material must comply with Civil

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Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue. Pursuant to

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Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that

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the Protected Material at issue is privileged, protectable as a trade secret, or otherwise

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entitled to protection under the law. If a Receiving Party's request to file Protected

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Material under seal pursuant to Civil Local Rule 79-5 is denied by the court, then the

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Receiving Party may file the information in the public record pursuant to Civil Local

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Rule 79-5 unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph

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4, each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material” includes

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all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and (2) affirms that the Receiving Party has not

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retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: March 31, 2015

BEITCHMAN & ZEKIAN, P.C.

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By:

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/s/ Andre Boniadi
David P. Beitchman,
Rouben Varozian,
Andre Boniadi,
Attorneys for Defendants,
TORO RIDE, INC. and KAREN
KEVIN GALSTIAN

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DATED: March 31, 2015

SCHEPER KIM & HARRIS LLP

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By:

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/s/ Alexander Cote
David C. Scheper,
Alexander H. Cote,
Gregory A. Ellis,
Attorneys for Plaintiff,
CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATE: April 1, 2015
Hon. Paul L. Abrams,
United States Magistrate Judge

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[PROPOSED] STPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of
, declare under penalty of perjury

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

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issued by the United States District Court for the Central District of California on
in the case of Cellco Partnership d/b/a Verizon Wireless v. Toro Ride,

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Inc. et al. (2:15-cv-01187-DSF-PLA). I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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or item that is subject to this Stipulated Protective Order to any person or entity except

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in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.
I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order. This acknowledgment and agreement was sworn and signed by me in the City

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of

, State of

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Dated

Print Name

Signature

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[PROPOSED] STPULATED PROTECTIVE ORDER