Reserve Media, Inc. v. Efficient Frontiers, Inc.

Filing 27

PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg. re Stipulation for Protective Order 26 . (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RESERVE MEDIA, INC., a Delaware
corporation,

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Case No.: CV 15-5072 DDP (AGRx)

Plaintiff,

PROTECTIVE ORDER

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vs.
DISCOVERY MATTER
EFFICIENT FRONTIERS, INC., a
Wisconsin corporation; and DOES 1-10,
Defendants.

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EFFICIENT FRONTIERS, INC., a
Wisconsin corporation;

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Counter-Claimant,

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vs.
RESERVE MEDIA, INC.,
Counter-Defendant.

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The Court having considered the Stipulated Protective Order, and it

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appearing that there is good cause for an Order providing confidential treatment for

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certain documents and information that may be disclosed or produced during

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discovery or other proceedings herein:
IT IS ORDERED that:

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1.

PRELIMINARY STATEMENTS
A.
PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them

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to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a

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party seeks permission from the court to file material under seal.

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B.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or

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commercial information (including information implicating privacy rights of third

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parties), information otherwise generally unavailable to the public, or which may

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be privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to

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keep confidential, to ensure that the parties are permitted reasonable necessary uses

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of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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2.

DEFINITIONS

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2.1

Action: this pending federal lawsuit.

2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: as specified above in the

Good Cause Statement, information, documents, and/or tangible things, regardless
of how it is generated, stored or maintained, that qualify for protection under
Federal Rule of Civil Procedure 26(c).
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Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).

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2.5

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

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or items that it produces in disclosure or in the responses to discovery as

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or foundation, regardless

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of 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

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or generated in disclosures or responses to discovery in this matter.

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2.7

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 expert witness or as a consultant in this Action.
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House Counsel: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.9

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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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2.10 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm which has appeared on behalf of that party, and includes support staff.

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2.11 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).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation

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support 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.
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2.14 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material 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

Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.

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DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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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

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

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

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized

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designations are prohibited. Designations that are shown to be clearly unjustified

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or that have been made for an improper purpose (e.g., to unnecessarily encumber

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the case development process or to impose unnecessary expenses and burdens on

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other parties) may expose the Designating Party to sanctions. If it comes to a

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Designating Party’s attention that information or items that it designated for

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

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notify all other Parties that it is withdrawing the inapplicable 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.

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Designation in conformity with this Order requires:

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(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 at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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

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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). A Party

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or Non-Party that makes original documents available for inspection need not

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designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed
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“CONFIDENTIAL.” After the inspecting Party has identified the documents it

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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

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

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legend” to each page that contains Protected Material. If only a portion or portions

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

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

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the margins).

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(b) for testimony given in deposition or 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. When it is impractical to

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identify separately each portion of testimony that is entitled to protection and it

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appears that substantial portions of the testimony may qualify for protection, the

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Designating Party may invoke on the record (before the deposition, hearing, or

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other proceeding is concluded) a right to have up to 21 days to identify the specific

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portions of the testimony as to which protection is sought. Only those portions of

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the testimony that are appropriately designated for protection within the 21 days

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shall be covered by the provisions of this Stipulated Protective Order.

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Alternatively, a Designating Party may specify, at the deposition or up to 21 days

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afterwards if that period is properly invoked, that the entire transcript shall be

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treated as “CONFIDENTIAL.”

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Parties shall give the other parties notice if they reasonably expect a

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deposition, hearing or other proceeding to include Protected Material so that the

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other parties can ensure that only authorized individuals who have signed the

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“Acknowledgement and Agreement to be Bound” (Exhibit A) are present at those

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proceedings. The use of a document as an exhibit at a deposition shall not in any

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way affect its designation as “CONFIDENTIAL.”

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Transcripts containing Protected Material shall have an obvious legend on

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the title page that the transcript contains Protected Material. The Designating Party

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shall inform the court reporter of these requirements. Any transcript that is

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prepared before the expiration of a 21-day period for designation shall be treated

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during that period as if it had been designated “CONFIDENTIAL” in its entirety

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unless otherwise agreed. After the expiration of that period, the transcript shall be

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treated only as actually designated.
(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

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

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

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identify the protected portion(s).
5.3

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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

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

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

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
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The burden of persuasion in any such challenge proceeding shall be

on the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
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

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

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

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the conditions described in this Order. When the Action has been terminated, a

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Receiving Party must comply with the provisions of Section 13 below (FINAL

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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

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“CONFIDENTIAL” 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

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necessary to disclose the information for this Action and who have signed the

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

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action and
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who have signed the “Acknowledgement and Agreement to Be Bound” that is

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attached hereto as Exhibit A;
(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action 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;

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(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;
(h) witnesses to be deposed in this Action to whom disclosure is reasonably

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

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Bound” (Exhibit A). Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and

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(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions and

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who have signed the “Acknowledge and Agreement to Be Bound” (Exhibit A).

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall

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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

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

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of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

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

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

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the 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

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to 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 NonParty in this Action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:

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(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

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

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Protective Order in this Action, 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

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Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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

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

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

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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

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expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the

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

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//

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//
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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the
stipulated protective order submitted to the court.
12.

MISCELLANEOUS

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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.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Within two (2) court
days of presenting a written application and a proposed order to the judge in
compliance with Civil Local Rule 79-5, if the Party that seeks to file under seal any
Protected Material is not the Designating Party, then the Designating Party shall
present its own application and proposed order to the judge, and the Designating

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Party shall bear the burden of satisfying the requirements of filing the Protected

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Material under seal. Protected Material may only be filed under seal pursuant to a

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court order authorizing the sealing of the specific Protected Material at issue. If a

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Party's request to file Protected Material under seal is denied by the court, then the

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Receiving Party may file the information in the public record unless otherwise

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instructed by the court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4

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(DURATION), within 60 days of a written request by the Designating Party, each

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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”

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includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected

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Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain

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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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14.

Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO ORDERED this 14th day of December, 2015.

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HON. ALICIA G. ROSENBERG
United States Magistrate Judge

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Attachment A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, _______________________ [print or type full name], of

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_______________________ [print or type full address], declare under penalty of

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

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Order that was issued by the United States District Court for the Central District of

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California in the case of Reserve Media, Inc. v. Efficient Media, Inc., Civil Action

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No. CV 15-05072 DDP (AGRx). I agree to comply with and to be bound by all the

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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

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

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or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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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

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type full name] of _______________________ [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.

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Date: _______________________

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City and State where sworn and signed: _______________________

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Printed Name: _______________________

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Signature: _______________________

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