Joseph Daniel Lasica v. America Online, Inc.

Filing 45

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm, re: Stipulation for Protective Order, 39 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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JOSEPH DANIEL LASICA, an
individual,
Plaintiff,

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vs.
AOL Inc., a Delaware corporation,
Defendant.

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Case No. 2:15-CV-04230-GW (FFMx)
ORDER GOVERNING USE AND
DISSEMINATION OF
CONFIDENTIAL INFORMATION

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Pursuant to the Stipulation to Entry of Order Governing Use and

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Dissemination of Confidential Information filed by Plaintiff Joseph Daniel Lasica

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and Defendant AOL Inc. (each a “Party,” and collectively the “Parties”), the Court

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hereby enters this Protective Order (the “Order”) to protect confidential information

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and material that may be produced or otherwise disclosed by the parties or third

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parties during the course of discovery in this case and in order to facilitate the

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exchange of information and documents that may be subject to confidentiality

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limitations on disclosure due to federal laws, state laws, and privacy rights.

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IT IS HEREBY ORDERED that:
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No person subject to this Order may disclose information of any kind

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produced or disclosed in the course of discovery or settlement discussions in this

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action (hereinafter “Discovery Material”) which a Party has designated as

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“Confidential” or “Confidential Attorneys Eyes Only” (hereinafter “Confidential

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AEO”) pursuant to this Order to anyone else except as this Order expressly permits.

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2.

The Party or person producing or disclosing Discovery Material

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(hereinafter “Producing Party”) may designate as “Confidential” only the portion of

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such material that it reasonably and in good faith believes consists of:

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(a)

previously non-disclosed financial information (including

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without limitation profitability reports or estimates, percentage

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fees, royalty rates, minimum guarantee payments, sales reports,

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advertising sales data and sale margins);

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(b)

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control of any non-public company;
(c)

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previously non-disclosed material relating to ownership or

previously non-disclosed business plans, product-development
information, or marketing plans;

(d)

any information of a personal or intimate nature regarding any
individual;

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(e)

information related to previously non-disclosed and/or sensitive

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information regarding advertisers, licensees, suppliers, or other

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entities with whom either Party has business relations;

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(f)

any information that any Party reasonably and in good faith

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believes would give a direct competitor an unfair business

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advantage by virtue of disclosure of that information; or

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(g)

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any other category of information this Court subsequently affords
confidential status.

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A Producing Party may designate as “Confidential AEO” only the

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portion of Discovery Material that it reasonably and in good faith believes consists

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of highly sensitive and/or commercially competitive Discovery Material.

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4.

A Producing Party or its counsel may designate the confidential portion

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of any Discovery Material other than deposition transcripts and exhibits as

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“Confidential” or “Confidential AEO” by stamping or otherwise clearly marking as

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“Confidential” or “Confidential AEO” the protected portion in a manner that will not

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interfere with legibility or audibility.

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5.

A Producing Party or its counsel may designate deposition exhibits or

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portions of deposition transcripts as Confidential Discovery Material or Confidential

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AEO Discovery Material either by: (a) indicating on the record during the

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deposition that a question calls for Confidential or Confidential AEO information, in

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which case the reporter will bind the transcript of the designated testimony in a

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separate volume and mark it as “Confidential” or “Confidential AEO” and will

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indicate “Information Governed by Protective Order” or (b) notifying the reporter

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and all counsel of record, in writing, within this thirty (30) days after receiving a

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transcript of the deposition, of the specific pages and lines of the transcript that are

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to be designated “Confidential” or “Confidential AEO,” in which case all counsel

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receiving the transcript will be responsible for marking the copies of the designated

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transcript in their possession or under their control as directed by the Producing
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Party or that person’s counsel. During the thirty (30) day period following the

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Parties’ receipt of transcripts of the deposition, all Parties will treat the entire

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deposition transcript as if it had been designated “Confidential.”

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6.

If at any time before the trial of this action a Producing Party realizes

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that it should have designated as “Confidential” or “Confidential AEO” some

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portion or portion(s) of Discovery Material that it previously produced without

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limitation, the Producing Party may so designate such material by so apprising all

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prior recipients in writing. Thereafter, all persons subject to this Order will treat

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such designated portion(s) of the Discovery Material as “Confidential” or

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“Confidential AEO.”
7.

Nothing contained in this Order will be construed as: (a) a waiver by a

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Party or person of its right to object to any discovery request; (b) a waiver of any

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privilege or protection; or (c) a ruling regarding the admissibility at trial of any

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document, testimony or other evidence.

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8.

Where a Producing Party has designated Discovery Material as

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“Confidential,” other persons subject to this Order may disclose such information

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only to the following persons:

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(a)

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the Parties to this action, their insurers, and counsel to their
insurers;

(b)

counsel retained specifically for this action, including any

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paralegal, clerical, or other assistant that such outside counsel

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employs and assigns to this matter;

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(c)

outside vendors or service providers (such as copy service

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providers and document management consultants) that counsel

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hire and assign to this matter, provided such persons or entities

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have first been notified of this Confidentiality Agreement and

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Protective Order;

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(d)

any mediator or arbitrator that the Parties engage in this matter or

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that this Court appoints, provided such person has first executed a

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Nondisclosure Agreement in form attached hereto as Attachment

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A;

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(e)

as to any document, its author, its addressee, and any other

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person indicated on the face of the document as having received a

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copy;

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(f)

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any witness who counsel for a Party in good faith believes may
be called to testify at trial or deposition in this action, provided

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such person has first executed a Nondisclosure Agreement in

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form attached hereto as Attachment A;

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(g)

any person a Party retains to serve as an expert witness or to

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otherwise provide specialized advice to counsel or a Party in

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connection with this action and/or settlement of this action

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(through a potential business arrangement or otherwise),

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including but not limited to outside counsel, consultants,

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accountants and other financial professionals, provided such

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person has first executed a Nondisclosure Agreement in form

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attached hereto as Attachment A;

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(h)

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conduct in this action; and

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(i)

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stenographers engaged to transcribe depositions the Parties

this Court, including any appellate court, its support personnel,
and court reporters.

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Where a Producing Party has designated Discovery Material as

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“Confidential AEO,” other persons subject to this Order may disclose such

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information only to the following persons:

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(a)

a Parties’ in-house or inside legal counsel;

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(b)

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counsel retained specifically for this action, including any
paralegal;

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(c)

outside vendors or service providers (such as copy service

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providers and document management consultants) that counsel

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hire and assign to this matter, provided such persons or entities

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have first been notified of this Confidentiality Agreement and

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Protective Order;

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(d)

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any mediator or arbitrator that the Parties engage in this matter or
that this Court appoints, provided such person has first executed a

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Nondisclosure Agreement in the form attached hereto as

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Attachment A;

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(e)

as to any document, its author, its addressee, and any other

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person indicated on the face of the document as having received a

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copy;

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(f)

any person a Party retains to serve as an expert witness or to

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otherwise provide specialized advice to counsel or a Party in

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connection with this action and/or settlement of this action

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(through a potential business arrangement or otherwise),

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including but not limited to outside counsel, consultants,

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accountants and other financial professionals, provided such

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person has first executed a Nondisclosure Agreement;

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(g)

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conduct in this action; and

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(h)

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stenographers engaged to transcribe depositions the Parties

this Court, including any appellate court, its support personnel,
and court reporters.

10.

Before disclosing any “Confidential” or “Confidential AEO” Discovery

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Material to any person referred to in subparagraphs 8(d), (f), or (g), or 9(d) or (f),

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counsel must provide a copy of this Order to such person, who must sign the
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Nondisclosure Agreement attached hereto as Exhibit “A” stating that he or she has

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read this Order and agrees to be bound by its terms. Said counsel must retain each

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signed Nondisclosure Agreement, hold it in escrow, and produce it to opposing

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counsel either before such person is permitted to testify (at deposition or trial) or at

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the conclusion of the case, whichever comes first.

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11.

This Court retains discretion as to whether to afford confidential

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treatment to any Discovery Material designated as “Confidential” or “Confidential

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AEO” and submitted to the Court in connection with any motion, application, or

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proceeding that may result in an order and/or decision by the Court.

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12.

In filing “Confidential” or “Confidential AEO” Discovery Material

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with this Court, or filing portions of any pleadings, motions, or other papers that

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disclose such “Confidential” or “Confidential AEO” Discovery Material

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(“Confidential Court Submission”), the Parties shall publicly file a redacted copy of

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the Confidential Court Submission via the Electronic Case Filing System. The

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Parties shall file an application to file the papers under seal, which application must

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demonstrate good cause for the under seal filing. Only if and to the extent the

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application is granted, the Parties may then file an unredacted copy of the

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Confidential Court Submission under seal with the Clerk of this Court. The Parties

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shall serve this Court and opposing counsel with unredacted courtesy copies of the

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Confidential Court Submission.

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13.

Any Party who objects to any designation of confidentiality may at any

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time within the discovery period established by the District Judge to which this

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action is assigned, serve upon counsel for the Producing Party a written notice

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stating with particularity the grounds of the objection. If the Parties cannot reach

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agreement promptly, counsel for all affected Parties will address their dispute to this

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Court pursuant to the procedure set forth in Central District of California Local Rule

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37.

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14.

Recipients of “Confidential” or “Confidential AEO” Discovery

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Material under this Order may use such material solely for the prosecution and

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defense of this action and any appeals thereto, and for the purpose of assessing

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settlement of this action, and not for any business, commercial, or competitive

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propose or in any other litigation proceeding. Nothing contained in this Order,

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however, will affect or restrict the rights of any Party with respect to its own

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documents or information produced in this action.

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15.

Nothing in this Order will prevent any Party from producing any

“Confidential” or “Confidential AEO” Discovery Material in its possession in

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response to a lawful subpoena or other compulsory process, or if required to

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produce it by law or by any government agency having jurisdiction, provided

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that such Party gives written notice to the Producing Party as soon as

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reasonably possible, and if permitted by the time allowed under the request, at

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least ten (10) days before any disclosure. Upon receiving such notice, the

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Producing Party will bear the burden to oppose compliance with the subpoena,

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other compulsory process, or other legal notice if the Producing Party deems it

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appropriate to do so.

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16.

Each person who has access to Discovery Material designated as

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“Confidential” or “Confidential AEO” pursuant to this Order must take all due

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precautions to prevent the unauthorized or in advertent disclosure of such

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material.

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Within sixty (60) days of the final disposition of this action -

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including all appeals- all recipients of “Confidential” or “Confidential AEO”

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Discovery Material must either return the material – including all copies

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thereof-to the Producing Party, or, upon permission of the Producing Party,

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destroy such material-including all copies thereof, and provide evidence of

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such destruction to the Producing Party. In either event, by the sixty (60) day

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deadline, the recipient must certify its return or destruction by submitting a
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written certification to the Producing Party that affirms that it has not retained

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any copies, abstracts, compilations, summaries, or other forms of reproducing

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or capturing any of the “Confidential” or “Confidential AEO” Discovery

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Material. Notwithstanding this provision, the attorneys that the Parties have

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specifically retained for this action may retain an archival copy of all

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pleadings, motion papers, transcripts, expert reports, legal memoranda,

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correspondence, or attorney work product, even if such materials contain

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“Confidential” or “Confidential AEO” Discovery Material. Any such archival

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copies that contain or constitute “Confidential” or “Confidential AEO”

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Discovery Material remain subject to this Order.
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The Parties acknowledge that any disclosure or exchange of

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“Confidential” or “Confidential AEO” Discovery Material that has occurred

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prior to the date of entry of this Order is subject to this Agreement.

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This Court will retain jurisdiction over all persons subject to this

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Order to the extent necessary to enforce any obligations arising hereunder or

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to impose sanctions for any contempt thereof.

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Good Cause being found, IT IS SO ORDERED.

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Dated: February 16, 2016

/S/ Frederick F. Mumm
Honorable Frederick F. Mumm
United States Magistrate Judge

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Attachment "A"

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NONDISCLOSURE AGREEMENT

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I, ___________________________________, state that:

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1.

My address is

__________________________________________________________
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My present employer is

__________________________________________________________
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My present occupation or job description is

__________________________________________________________
4.

I have received a copy of the Protective Order entered in the case of

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Joseph Daniel Lasica v. AOL Inc., United States District Court – Central District of

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California Case No. 2:15-cv-04230 GW (FFMx).

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5.

I have read and understand the Order Governing Use and Dissemination

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of Confidential Information (the “Order”). I hereby agree to comply with all of the

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terms of the Order, including holding in confidence and not disclosing to any

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unqualified person all documents, things, or information designated

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“CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS EYES ONLY.”

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6.

I hereby expressly covenant that I will only use the documents, things,

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or information designated as “CONFIDENTIAL” or “CONFIDENTIAL

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ATTORNEYS EYES ONLY” in connection with the above-referenced litigation

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and that I will not use such documents, things, or information for any other purpose.

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Further, I expressly covenant that I will not use such documents, things, or

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information for the benefit of myself or any other person or entity.

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7.

Within sixty (60) days of notice by any Party that this litigation is over,

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or that my involvement is no longer deemed necessary, I expressly covenant that I

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will return all information and materials provided to me with the designation of

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“CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS EYES ONLY.” I will
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also provide a Declaration, submitted under penalty of perjury, which identifies by

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Bates Number, the information and materials that I am returning.

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8.

I hereby consent to the jurisdiction of the United States District Court –

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Central District of California – Western Division for the purpose of enforcing the

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Order and this agreement to be bound thereby.

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Dated: __________________

___________________________
Signature

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___________________________
Print Name

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