Mitsui Sumitomo Insurance USA, Inc. et al v. Kyocera Mita Corporation, a Japan corporation et al

Filing 46

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order, 45 (see attached) (jm)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MITSUI SUMITOMO
INSURANCE USA, INC.; and
MITSUI SUMITOMO
INSURANCE COMPANY OF
AMERICA,

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vs.

Plaintiffs,

CASE NO. 2-15-cv-01860-ODW-FFM
ORDER ON STIPULATION FOR
THE TREATMENT OF
CONFIDENTIAL INFORMATION
PRODUCED IN DISCOVERY
DISCOVERY MATTER

KYOCERA MITA
CORPORATION, a Japan
corporation; KYOCERA
DOCUMENT SOLUTIONS, INC., a
Japan corporation; KYOCERA
DOCUMENT TECHNOLOGY CO.,
LTD, a China corporation;
SHINDENGEN ELECTRIC
MANUFACTURING COMPANY,
LTD., a Japan corporation; and
DOES 1-40, inclusive,
Defendants.

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The Court has reviewed the stipulation by and between Plaintiff Mitsui

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Sumitomo Insurance, USA and Mitsui Sumitomo Insurance Company of America

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(collectively, “Plaintiffs”) and Defendants Kyocera Document Solutions, Inc. and

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Kyocera Document Technology Co., Ltd. (collectively, “Kyocera”) for the

1103678/27191869v.1

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treatment of confidential information produced in discovery. Good cause
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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appearing, it is hereby ORDERED as follows

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I.

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SCOPE:
A.

This Protective Order shall limit the use and/or disclosure of

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documents, deposition testimony, and related information which are,

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or which embody or disclose any information, designated hereunder

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as “CONFIDENTIAL” or as “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY” and shall apply to:

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1.

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All such documents so designated in accordance with this
Protective Order and all information contained therein;

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2.

Portions of deposition testimony and transcripts and exhibits

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thereto which include, refer, or relate to any designated

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“CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY” information;

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3.

All information, copies, extracts, and complete or partial

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summaries prepared or derived from information that was

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designated

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ATTORNEYS’ EYES ONLY”; and

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4.

“CONFIDENTIAL”

or

“CONFIDENTIAL--

Portions of briefs, memoranda, or any writing filed with or

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otherwise supplied to the Court under seal, which include or

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refer to any information designated “CONFIDENTIAL” or

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY”.

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B.

Any person (i.e., any individual or entity) designating documents,

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testimony,

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY” hereunder asserts

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that he, she, or it believes in good faith that such material is his, her,

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or its Confidential Information which is not otherwise available to the

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public generally, or is Confidential Information which the person

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///

or

other

information

as

“CONFIDENTIAL”

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

or

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believes is or may be encompassed by a pre-existing confidentiality

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agreement with any other person.

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C.

“Confidential Information” is defined as documents, material, or

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testimony that is private or constitutes and/or relates to (a) trade

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secrets; (b) business strategies, decisions, and/or negotiations;

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(c) financial, budgeting, and/or accounting information; (d) customer

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information, including prospective customers; and (e) marketing

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studies, proformas, projections, and similar information relating to the

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value and/or potential value of stock, science and technology, and/or

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other assets or liabilities.

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D.

Confidential Information ordinarily should be designated as

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“CONFIDENTIAL” rather than “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY.”

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ONLY” designation is appropriate only where the Confidential

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Information is so extremely sensitive in the context of this case that

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there is a real danger that the party producing the information could be

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prejudiced if the information is disclosed under the protection

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provided by a “CONFIDENTIAL” designation.

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information warranting a “CONFIDENTIAL--ATTORNEYS’ EYES

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ONLY” designation are documents which contain, disclose, or reflect

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trade secrets, sensitive customer information, business and marketing

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plans

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information.

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E.

and

A “CONFIDENTIAL--ATTORNEYS’ EYES

information,

or

similarly

Examples of

competitively

sensitive

Nothing in this Order and no party’s designation of any document or

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information

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ATTORNEYS’ EYES ONLY” shall be construed to constrain,

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preclude, or otherwise affect in any manner the independent research

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///

as

“CONFIDENTIAL”

or

“CONFIDENTIAL--

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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and development, marketing, product development, or other technical

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activities of the parties.

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F.

Nothing in this Order and no party’s designation of any document as

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“CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’ EYES

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ONLY” shall be construed to constrain, preclude, or otherwise affect

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the use (including the ability to include the document or information

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in papers not filed under seal) of another party’s documents which are

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duplicates of such designated documents provided that such duplicate

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documents were lawfully obtained by such party through means

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independent of the discovery process.

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G.

A party’s failure to designate a document as its Confidential

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Information where the document was produced by another party and

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designated by the producing party as that party’s Confidential

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Information shall not be construed to waive the non-designating

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party’s claim, with respect to present and future litigation between

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these or other parties, that the document contains the non-designating

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party’s Confidential Information.

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H.

Any use of Confidential Information at trial shall be governed by the

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orders of the trial judge. This order does not govern the use of

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Confidential Information at trial.

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II.

DESIGNATION

OF

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“CONFIDENTIAL”

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A.

OR

AND

DEPOSITIONS

“CONFIDENTIAL--ATTORNEYS’

AS

ONLY”:

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DOCUMENTS

EYES

Designation of a document as “CONFIDENTIAL” by the producing

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party shall be made by conspicuously stamping or writing

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“CONFIDENTIAL” on each page, or portion thereof, which is

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deemed “CONFIDENTIAL.”

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///

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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B.

Designation of a document as “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY” by the producing party shall be made by conspicuously

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stamping or writing “CONFIDENTIAL--ATTORNEYS’ EYES

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ONLY” on each page, or portion thereof, which is deemed

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY.”

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C.

Designation of a deposition or other pretrial testimony, or portions

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thereof,

as

“CONFIDENTIAL”

or

“CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” shall be made by a statement on the

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record by counsel for the party or other person making the claim of

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confidentiality at the time of such testimony.

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depositions

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY” shall be taken

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only in the presence of persons qualified to receive such information

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pursuant to the terms of this Protective Order, the court reporter, the

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videographer, the deponent, and the deponent’s attorney. Failure of

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any person to comply with a request to leave the deposition room will

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constitute sufficient justification for the witness to refuse to answer

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any question calling for disclosure of Confidential Information so

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long as persons not entitled by this Protective Order to have access to

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such information are in attendance.

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reopen the deposition into areas which the witness refused to answer

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after bringing a motion for protective order to resolve whether the

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person who refused to leave the deposition should be allowed to be

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present during questioning. After resolution of said motion, counsel

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shall be allowed to continue said deposition with respect to the

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questions, and lines of questioning, which the deponent refused to

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answer, though the Court may order that the deposition continue

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outside the presence of the person who refused to leave the initial
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so

designated

as

The portions of

“CONFIDENTIAL”

or

Thereafter, any counsel may

ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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deposition. The applicable portions of such deposition transcripts

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shall be clearly marked “CONFIDENTIAL” or “CONFIDENTIAL

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ATTORNEYS’ EYES ONLY” on each page containing the

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Confidential Information.

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D.

Any party may designate documents or portions of deposition

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transcripts as containing Confidential Information even if not initially

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marked

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ATTORNEYS’ EYES ONLY” in accordance with the terms of this

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Protective Order by so advising counsel for each party in writing

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within twenty-one (21) calendar days of the receipt of the document

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or deposition transcript which he, she, or it wishes to designate as

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Confidential Information.

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transcript shall be treated in accordance with the terms of this

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Protective Order. Any person served with written notice of any such

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designation of previously produced documents or deposition

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transcripts as containing Confidential Information shall thereafter treat

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such information as if it had been designated as “CONFIDENTIAL”

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or “CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” at the time

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he, she, or it first received it in connection with this action and shall

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mark all copies of such documents in his, her, or its possession

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accordingly.

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III.

LIMITATIONS

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A.

“CONFIDENTIAL”

ON

or

“CONFIDENTIAL--

Thereafter each such document or

DISCLOSURE

OF

CONFIDENTIAL

INFORMATION:

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as

No Confidential Information shall be disclosed by anyone receiving

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such information to anyone other than those persons designated

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herein, and in no event shall Confidential Information be used, either

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directly or indirectly, by anyone receiving such information for any

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business, commercial or competitive purpose or for any purpose
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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whatsoever other than the preparation for or trial of this action in

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accordance with the provisions of this Protective Order.

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B.

Confidential Information designated “CONFIDENTIAL” shall not be

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disclosed by any person who has received such information through

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discovery in this action to any other person except to:

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1.

Retained counsel for any party to this action and their

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respective associates, clerks and employees involved in the

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conduct of this litigation and also to employees of the Parties’

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insurers who are responsible for administering or adjusting the

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claims asserted in the litigation.
2.

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The parties hereto, and their present officers, directors and
employees;

3.

Outside experts and consultants retained by a party for the

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purpose of preparing or assisting in this litigation, and their

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respective clerks and employees involved in assisting them in

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this litigation, to the extent deemed necessary by counsel;

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4.

Any person who actually was involved in the preparation of the

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document or who appears on the face of the document as the

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author, addressee, or other recipient or currently is affiliated

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with the party that produced or appears to have prepared said

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document;

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5.

Court reporters, the Court and its personnel;

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6.

Deponents with respect to whom the attorney for the examining

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party believes in good faith that disclosure of Confidential

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Information should be made in order to conduct relevant

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examination of such deponent on topics about which the

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attorney in good faith believes the deponent may have relevant

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information. In the case of a deponent who was not an author
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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or recipient of the Confidential Information, and who has not

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previously agreed to be bound by the terms of this Order, the

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attorney conducting the examination shall limit disclosure of

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confidential information by any means practicable (i.e.,

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redaction or severance of non-relevant portions) to only that

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which is in good faith required to conduct a meaningful

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examination of the witness, and shall show all counsel a copy

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of said redacted document before showing it to the witness; and

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7.

Any other person, either with the prior written consent of the

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party who has designated such information as confidential or

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pursuant to a Court order.

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C.

Confidential

Information

designated

“CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” shall not be disclosed by any person

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who has received such information through discovery in this action to

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any other person except to:

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1.

Retained counsel for any party to this action and their

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respective associates, clerks and employees involved in the

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conduct of this litigation, but not including in-house counsel to

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either party, defined as counsel regularly employed or paid by,

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or associated with, a party, and/or whose offices are located

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within any premises of a party;

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2.

Outside experts and outside consultants assisting in this

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litigation, and their respective clerks and employees involved in

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assisting them in this litigation, to the extent deemed necessary

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by counsel;

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3.

Any person who actually was involved in the preparation of the

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document or who appears on the face of document as the

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author, addressee, or other recipient, or is currently affiliated
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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with the party that produced or appears to have prepared said

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document;

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4.

Court reporters, the Court and its personnel;

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5.

Deponents with respect to whom the attorney for the examining

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party believes in good faith that disclosure of Confidential

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Information should be made in order to conduct relevant

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examination of such deponent on topics about which the

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attorney in good faith believes the deponent may have relevant

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information. In the case of a deponent who was not an author

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or recipient of the Confidential Information, and who has not

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previously agreed to be bound by the terms of this Order, the

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attorney conducting the examination shall limit disclosure of

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confidential information by any means practicable (i.e.,

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redaction or severance of non-relevant portions) to only that

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which is in good faith required to conduct a meaningful

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examination of the witness, and shall show all counsel a copy

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of said redacted document before showing it to the witness; and

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6.

Any other person, either with the prior written consent of the

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party who has designated such information as confidential or

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pursuant to a Court order.

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7.

Any designation of documents, or portions thereof, as

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY” shall be

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reserved for only those instances in which it is truly justified. If

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an objection to such designation is brought to the Court’s

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attention,

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“CONFIDENTIAL--ATTORNEYS’

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designation was not truly justified and without merit, the Court

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///

and

the

Court

determines

that

EYES

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

such
ONLY”

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reserves the right to de-designate all “CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” to “CONFIDENTIAL.”

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D.

Before any person described in paragraphs 3(b)(iii), 3(b)(vii), 3(c)(ii)

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or 3(c)(vi) receives or is shown any document or information which

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has been designated as confidential, such person shall be given a copy

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of this Protective Order and shall agree in writing, in the form of the

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“Agreement to be Bound By Terms Of The Protective Order” attached

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hereto as Exhibit A, to be bound by the terms hereof. The original of

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each such Acknowledgment and Agreement shall be maintained by

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counsel, and transmitted by facsimile to all other counsel of record. If

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any counsel objects to showing the signatory documents subject to

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this Order, the objecting party shall give facsimile notice of its

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objections and the grounds therefore and shall have five business days

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to file and serve a motion for protective order. If no objection is

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raised or no motion for protective order is filed and served within five

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days thereafter, all objections to showing the signatory documents

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shall be waived and the signatory may be shown the documents

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subject to this Order. If the person does not so agree, the person may

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not be shown the document until after a motion for protective order is

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brought and an order obtained preventing the person from misusing

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any information in the document.

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E.

Nothing in this Protective Order shall be construed to require

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execution of the written Acknowledgement and Agreement referred to

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in paragraph 3(d) above, or to prevent disclosure of Confidential

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Information, by the party producing and designating such Confidential

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Information, or by any employee of such party.

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Protective Order shall prevent counsel for either party from

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summarizing or discussing in general terms the nature of documents
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Nothing in this

ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

1

designated

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ATTORNEYS’ EYES ONLY” with representatives of their respective

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clients, outside experts and consultants, deponents or potential

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witnesses, provided such summary or discussion does not disclose, in

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any way, the substance of the document so designated, the

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Confidential Information contained therein, and/or trade secret

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information of another party.

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IV.

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as

“CONFIDENTIAL”

or

“CONFIDENTIAL--

FILE UNDER SEAL:
Nothing may be filed under seal without separate prior order by the Judge

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before whom the hearing or proceeding will take place, after application by the

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affected party with appropriate notice to opposing counsel pursuant to Local Rule

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79-5. At the time of such application, the party seeking the order shall file in the

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public record a redacted version of the documents sought to be filed under seal.

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The parties shall follow and abide by applicable law, including local rules and the

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chambers’ rules, if any, with respect to filing documents under seal.

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Prior to filing any document marked as “CONFIDENTIAL” or

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“CONFIDENTIAL-ATTORNEY’S EYES ONLY,” not under seal, the party

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desiring to file such a document will meet and confer with the party marking the

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document as confidential to discuss whether and how the document can be

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redacted to protect the concerns of the designating party. Failure to meet and

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confer as such will be grounds for having the filing containing CONFIDENTIAL,

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or CONFIDENTIAL-ATORNEY’S EYES ONLY information stricken.

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V.

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CHALLENGE TO CONFIDENTIALITY DESIGNATION:
Any party who disagrees with the designation by a party of a document or

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other information as “CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’

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EYES ONLY” may bring a motion before the Court requesting that the Court find

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that the document or other information is, in fact, not confidential. Prior to

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bringing such motion, a party who objects to any other party’s designation of
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

1

documents or other information as “CONFIDENTIAL” or “CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” shall notify the other party in writing of the

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objection and meet and confer in good faith to resolve the objection. The

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interested parties or other persons shall attempt to resolve such disagreements

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before submitting them to the Court. Pending resolution of any dispute concerning

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such designation, all parties and persons governed by this Protective Order shall

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treat as “CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’ EYES

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ONLY” all documents and information previously designated as

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“CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’ EYES ONLY” under

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the terms of this Protective Order. If a motion challenging the confidentiality

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designation is brought, the party or person asserting that a document or other

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information is properly designated as “CONFIDENTIAL” or “CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY” shall bear the burden of proving that the document

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or other information is Confidential Information.

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VI.

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SURVIVAL OF ORDER - RETURN OF DOCUMENTS:
A.

The provisions of this Order shall continue in effect until otherwise

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ordered by the Court after notice and an opportunity to be heard is

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afforded to the parties to this action.

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settlement of this action shall not relieve any person who has received

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Confidential Information or agreed to be bound by the terms of this

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Protective Order of his, her, or its obligations hereunder. This Court

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shall retain jurisdiction after such final determination or settlement to

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enforce the provisions of this Order.

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litigation, all documents (including copies of documents) containing

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Confidential Information shall be destroyed or returned to counsel for

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the producing party, except that the parties’ respective attorneys of

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record may retain one copy of each such document for use in

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connection with any disputes which may arise under the Court’s
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The final determination or

Upon completion of the

ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

1

retention of jurisdiction as provided for herein. Within sixty days of

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the conclusion of this litigation, the attorneys for the receiving party

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shall notify the attorneys for the producing party that such return or

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destruction occurred.

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B.

Except as provided in Sections 4 or 7 hereof, documents or things

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containing the other party’s Confidential Information shall at all times

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be in the physical possession of those persons qualifying under

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Section 3 hereunder, or kept by counsel of record either at the

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premises regularly maintained by such counsel of record as and for

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their respective law offices, or otherwise in their sole custody or

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control.

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VII. USE OF OWN DOCUMENTS BY PRODUCING PARTY:
Nothing in this Protective Order shall limit the use by any party or other

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person of his, her or its own document(s) or information, or any other documents

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or information obtained independently of discovery, even if such document(s) or

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information have been designated as “CONFIDENTIAL” or “CONFIDENTIAL--

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ATTORNEYS’ EYES ONLY.”

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VIII. APPLICATIONS TO COURT:

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A.

This Protective Order shall not preclude or limit any party’s right to

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oppose or object to discovery on any ground which otherwise would

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be available. This Protective Order shall not preclude or limit any

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party’s right to seek in camera review or to seek further and additional

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protection against or limitation upon production or dissemination of

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information produced in response to discovery, including documents

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and their contents.

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B.

Any person to or by whom disclosure or inspection is made in

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violation of this Protective Order, and who has knowledge of this

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Protective Order, shall be bound by the terms hereof.
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

1

C.

The parties hereby, and all other persons who receive Confidential

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Information pursuant hereto, agree that any party or other person

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injured by a violation of this Order does not have an adequate remedy

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at law and that an injunction against such violation is an appropriate

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remedy. In the event any person shall violate or threaten to violate

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any terms of this Order, the parties agree that the aggrieved party may

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immediately apply to obtain injunctive relief against any such person.

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In the event the aggrieved party shall do so, the respondent person

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subject to the provisions of this Order shall not employ as a defense

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thereto the claim that the aggrieved party has an adequate remedy at

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law. Any persons subject to the terms of this Order agree that this

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Court shall retain jurisdiction over it and them for the purposes of

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enforcing this Order. The remedies set forth in this Section 8(c) are

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not exclusive to any other remedies that an aggrieved party may elect

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to pursue.

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IX.

NO ADMISSIONS:
Neither entering into this Stipulation for Protective Order nor receiving any

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documents or other information designated as “CONFIDENTIAL” or

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY” shall be construed as an

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agreement or admission (1) that any document or information designated as

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“CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’ EYES ONLY” is in

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fact Confidential Information; (2) as to the correctness or truth of any allegation

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made or position taken relative to any matter designated as “CONFIDENTIAL” or

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“CONFIDENTIAL--ATTORNEYS’ EYES ONLY;” or (3) as to the authenticity,

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competency, relevancy, or materiality of any information or document designated

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as “CONFIDENTIAL” or “CONFIDENTIAL--ATTORNEYS’ EYES ONLY.”

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This Order is not intended to modify or waive the provisions of the California

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Rules of Civil Procedure or of the California Rules of Evidence. This Order does
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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

1

not require the production of documents or information that would otherwise be

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non-discoverable.

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X.

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SUBPOENA BY OTHER COURTS OR AGENCIES:
If another court or an administrative agency subpoenas or orders production

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of “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”

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documents which a party has obtained under the terms of this Order, before

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complying with such subpoenas or orders, such party shall promptly notify the

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party or other person who designated the documents of the pendency of such

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subpoena or order.

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XI.

MODIFICATION - FURTHER AGREEMENTS:
Nothing contained herein shall preclude any party from seeking from the

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Court modification of this Order upon proper notice or preclude the parties from

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entering into other written agreements designed to protect Confidential

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Information.

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Further, the Court may modify the protective order in the interests of justice
or for public policy reasons.

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Dated: April 12, 2016

/S/ Frederick F. Mumm
FREDERICK F. MUMM
United States Magistrate Judge

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM

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EXHIBIT A
I have been provided with a copy of, read, and understand the Stipulation

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and Order Regarding the Treatment of Confidential Information Produced in

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Discovery in the case of Mitsui Sumitomo, etc., et al. v. Kyocera, etc., et al.,

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Central District of California Case No. 2-15-CV-01860-ODW-FFM, and agree to

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be bound by the terms thereof.

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Date:___________

Signature:______________________

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Print name:_____________________

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Company:______________________

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Title:__________________________

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Address:_______________________

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_______________________

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_______________________

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Tel:___________________________

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ORDER REGARDING THE TREATMENT OF CONFIDENTIAL INFORMATION PRODUCED IN
DISCOVERY
CASE NO. 2-15-cv-01860-ODW-FFM