John Fogerty v. Stuart Cook et al

Filing 41

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 39 : (see attached) (jm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

JOHN FOGERTY, an individual;

12
13
14
15
16

[Consolidated with Case No. 2:15-cv06501-FMO-FFM]

Plaintiff,
vs.
STUART COOK, an individual;
DOUGLAS CLIFFORD, an individual;
and POOR BOY PRODUCTIONS,
INC., a corporation,
Defendants.

17

Case No. 2:15-cv-06069-FMO-FFM

PROTECTIVE ORDER

Complaint Filed July 10, 2015
(Removed to federal court on August 11,
2015)

18
19
20
21
22
23
24
25
26
27

IT IS HEREBY ORDERED that the following terms and conditions shall
govern the handling of discovery materials in the Litigation:
1.

Applicability of Order:
a)

This Order will otherwise be applicable to and govern the
handling of documents, depositions, deposition exhibits,
interrogatory responses, responses to requests for admissions,
responses to requests for production of documents, and all other

28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

PROTECTIVE ORDER

1

discovery obtained pursuant to the Federal Rules of Civil

2

Procedure by or from a party or non-party in connection with the

3

Litigation (this information hereinafter referred to as “Discovery

4

Material”).

5

b)

As used herein, “Producing Party” or “Disclosing Party” shall

6

refer to the parties to this action and any non-party that give

7

testimony or produce documents or other information, and

8

“Receiving Party” shall refer to the parties to this action and any

9

non-party that receive such information.

10

c)

As used herein, the term “Counsel” shall refer to outside counsel

11

of record and other attorneys, paralegals, secretaries, and other

12

support staff employed in the law firms identified below:

13

(1)

Barnes & Thornburg LLP;

14

(2)

Brownstein Hyatt Farber Schreck, LLP; and

15

(3)

Steven T. Polikalas, Esq.

16

2.

Designation of Material: Any Producing Party may designate

17

Discovery Material that is in its possession, custody or control to be produced to a

18

Receiving Party as “Confidential – Subject to Protective Order” or “Confidential –

19

Subject to Protective Order – COUNSEL’S EYES ONLY” under the terms of this

20

Order if the Producing Party in good faith reasonably believes that such Discovery

21

Material contains non-public, confidential material as defined in paragraph 3 below,

22

(hereinafter “Confidential Material”).

23

3.

Confidential Material: For purposes of this Order, Confidential

24

Material is any material that a party believes in good faith to contain “Confidential

25

Information.”

26

4.

Designating Confidential Material: The designation of Discovery

27

Material as Confidential Material for purposes of this Order shall be made in the

28

following manner, and subject to the following provisions:

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

2

PROTECTIVE ORDER

1

a)

Designation as “Confidential – Subject to Protective Order”:

2

Any party may designate information as “Confidential – Subject

3

to Protective Order” only if, in the good faith belief of such

4

party and its counsel, the unrestricted disclosure of such

5

information (1) would be prejudicial to the business or

6

operations of such party; or (2) would otherwise violate any

7

protected privacy rights of such party.

8

b)

9

Designation as “Confidential – Subject to Protective Order –
COUNSEL’S EYES ONLY”: Any party may designate

10

information as “Confidential – Subject to Protective Order –

11

COUNSEL’S EYES ONLY” only if, in the good faith belief of

12

such party and its counsel, the information is among that

13

considered to be most sensitive by the party, including but not

14

limited to trade secret or other confidential research,

15

development, or financial information, such that it should not be

16

viewed or reviewed by anyone other than as provided in

17

Paragraph 8.

18

c)

Documents: In the case of documents or other materials (apart

19

from depositions or other pre-trial testimony), designation shall

20

be made by affixing the legend “Confidential – Subject to

21

Protective Order” or “Confidential – Subject to Protective Order

22

– COUNSEL’S EYES ONLY” to each page containing any

23

Confidential Material.

24

d)

Deposition: In the case of depositions, designation of the portion

25

of the transcript (including exhibits) which contains Confidential

26

Material shall be made (i) by a statement to such effect on the

27

record during the deposition, or (ii) by written notice served on

28

counsel of record in this Litigation within fifteen (15) days after

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

3

PROTECTIVE ORDER

1

the receipt of the draft transcript of such proceeding. However,

2

before such fifteen (15) day period expires, all testimony,

3

exhibits and transcripts of depositions shall be treated as

4

Confidential Material. All portions of deposition transcripts not

5

designated Confidential Material as provided in this Paragraph

6

4(d) shall be deemed not confidential.

7

e)

Non-Paper Materials: Any Confidential Material that is in a

8

format other than paper (e.g., videotape, audio tape, computer

9

disk, etc.) may be designated as such by labeling the outside of

10

such non-written material designated as “Confidential – Subject

11

to Protective Order” or “Confidential – Subject to Protective

12

Order – COUNSEL’S EYES ONLY.” If Confidential

13

Information is contained in an electronic format without a

14

physical container (e.g., an electronic file transmitted by email,

15

or via an FTP site), it may be designated by written or email

16

notice to the recipients at or before the time of production or by

17

placing “CONFIDENTIAL,” “COUNSEL ONLY,” or similar

18

designations in the electronic file names. In the event a

19

Receiving Party generates any “hard copy” transcription or

20

printout from any such designated non-paper materials, the

21

person who generates such “hard copy” transcription shall take

22

reasonable steps to maintain the confidentiality of such

23

materials.

24

5.

Inadvertent Disclosure: The inadvertent failure to designate

25

Confidential Material as Confidential does not constitute a waiver of such claim

26

and may be remedied by prompt supplemental written notice upon discovery of the

27

inadvertent disclosure, with the effect that such Confidential Material will be

28

subject to the protections of this Order. The Receiving Party shall exercise good

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

4

PROTECTIVE ORDER

1

faith efforts to ensure that copies it makes of Confidential Material produced to it,

2

and copies made by others who obtained such Confidential Material directly or

3

indirectly from the Receiving Party, include the appropriate confidentiality legend,

4

to the same extent that the Confidential Material has been marked with the

5

appropriate confidentiality legend by the Producing Party.

6

6.

Notice To Non-Parties: Any Party issuing a subpoena to a non-party

7

may enclose a copy of this Protective Order. A non-party responding to discovery

8

in this case may designate Confidential Material in the same manner, and with the

9

same effect, as a party.

10

7.

Persons Authorized To Receive Confidential Material Designated as

11

“Confidential – Subject to Protective Order”: Discovery Material designated

12

“Confidential – Subject to Protective Order” may be disclosed, summarized,

13

described, characterized or otherwise communicated or made available in whole or

14

in part only to the following persons:

15

a)

16
17

The Court and any applicable appellate court, their personnel,
and their stenographic reporters;

b)

Counsel and law firms of record in this Litigation and

18

supporting personnel employed in the law firms of such counsel

19

of record (e.g., attorneys, paralegals, clerks, secretaries, contract

20

attorneys, clerical personnel) assigned to and reasonably

21

necessary to assist in this Litigation;

22

c)

Experts or consultants assisting any counsel of record in this

23

Litigation (and their support personnel), provided such experts

24

and consultants have signed the “Agreement Concerning

25

Information Covered by Protective Order” attached hereto as

26

Exhibit A;

27
28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

d)

Executives, technical personnel, and in-house legal counsel of
the Receiving Party who are required in good faith to provide
5

PROTECTIVE ORDER

1

assistance in the conduct of this litigation, including any

2

settlement discussions, and who are identified as such in writing

3

to counsel for the Producing Party in advance of the disclosure

4

and who have signed the “Agreement Concerning Information

5

Covered by Protective Order” attached hereto as Exhibit A;

6

e)

Court reporters, videographers, translators, and graphics and

7

design services retained by counsel of record in this Litigation

8

for purposes of this Litigation, provided they have signed the

9

“Agreement Concerning Information Covered by Protective

10

Order” attached hereto as Exhibit A. A signature by an

11

authorized representative of company the company who

12

confirms that he or she has appropriately advised the relevant

13

employees of the confidentiality obligations in this order and

14

taken reasonable steps to comply thereto shall be sufficient;

15

f)

Commercial copy vendors retained by counsel of record in this

16

action for purposes of this Litigation, provided such vendors

17

have signed the “Agreement Concerning Information Covered

18

by Protective Order” attached hereto as Exhibit A. A signature

19

by an authorized representative of company the company who

20

confirms that he or she has appropriately advised the relevant

21

employees of the confidentiality obligations in this order and

22

taken reasonable steps to comply thereto shall be sufficient;

23

g)

During their depositions, witnesses in the Litigation who agree

24

on the record to maintain the confidentiality of relevant

25

documents or information shown to them or who have signed

26

the “Agreement Concerning Information Covered by Protective

27

Order” attached hereto as Exhibit A;

28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

6
PROTECTIVE ORDER

1

h)

Any person indicated by a document marked as Confidential

2

Material to be an author, addressee, or copy recipient of the

3

Confidential Material, or as to whom there has been testimony,

4

whether at deposition or trial, or by declaration or affidavit, that

5

the person was the author or recipient of the Confidential

6

Material; and

7

i)

Any other person, only upon order of the Court or upon

8

stipulation of the Producing Party, which may be conditioned

9

on, without limitation, signing of the “Agreement Concerning

10

Information Covered by Protective Order” attached hereto as

11

Exhibit A.

12

8.

Persons Authorized To Receive Confidential Material Designated as

13

“Confidential – Subject to Protective Order – COUNSEL’S EYES ONLY”:

14

Confidential Material designated “Confidential – Subject to Protective Order –

15

COUNSEL’S EYES ONLY” may be disclosed, summarized, described,

16

characterized or otherwise communicated or made available in whole or in part

17

only to the persons identified in Paragraphs 7(a), (b), (e), (f), (h), and (i) above, and

18

to independent experts only under the conditions set forth in this paragraph. The

19

party seeking to provide Confidential Material designated “Confidential – Subject

20

to Protective Order – COUNSEL’S EYES ONLY” to an independent expert or

21

consultant must first provide the producing party with the name and curriculum

22

vitae of the proposed independent expert or consultant, and an executed copy of the

23

“Agreement Concerning Information Covered by Protective Order” (attached

24

hereto as Exhibit A), along with identification of each person or entity from whom

25

the expert or consultant has received compensation for work in his or her area of

26

expertise or to whom the expert or consultant has provided professional services at

27

any time during the preceding four (4) years; and identification (by name, case

28

number, filing date, and location of court) of any litigation in connection with

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

7

PROTECTIVE ORDER

1

which the expert or consultant has provided any professional services during the

2

preceding four (4) years. However, if disclosure of either the identity of the entity

3

for which the work is being or has been performed or the subject matter of that

4

work, or both, is deemed proprietary, then the fact that certain information is being

5

withheld on the basis that it is proprietary shall be disclosed. The written notice

6

required under this paragraph need not be given to non-parties who have produced

7

Confidential Material subject to this Order. Any objection by the producing party

8

to an independent expert or consultant receiving Confidential Material must be

9

made in writing within ten (10) days following receipt of the identification of the

10

proposed expert or consultant. Such an objection must state with particularity the

11

grounds for the objection and the scope of the Confidential Material that is subject

12

to the objection. Confidential Material may be disclosed to an independent expert

13

or consultant if the ten (10) day period has passed and no objection has been made.

14

The approval of independent experts or consultant must not be unreasonably

15

withheld, and any objection must be based on a party’s good-faith belief that

16

disclosure of its Confidential Material to the expert or consultant is likely to result

17

in business or economic harm to that party.

18
19
20

9.

Use of Confidential Material: Confidential Material shall be used

solely for purposes of the Litigation, including any appeal and retrial.
10.

Agreement Must Be Signed Prior To Disclosure: Each person to whom

21

Confidential Material may be disclosed that is also required to sign the “Agreement

22

Concerning Information Covered by Protective Order” (attached hereto as Exhibit

23

A) pursuant to Paragraphs 7(c)-7(g) and 6 and Paragraph 8 shall do so prior to the

24

time such Material is disclosed to him or her.

25

11.

Filing of Confidential Material: Without written permission from the

26

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

27

persons, a party may not file in the public record in this action any Confidential

28

Material. A Party that seeks to file under seal any Confidential Material must

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

8

PROTECTIVE ORDER

1

comply with Civil Local Rule 79-5. Confidential Material may only be filed under

2

seal pursuant to a Court order authorizing the sealing of the specific Confidential

3

Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only

4

upon a request establishing that the Confidential Material at issue is privileged,

5

protectable as a trade secret, or otherwise entitled to protection under the law. If a

6

Receiving Party’s request to file Confidential Material under seal is denied by the

7

Court, then the Receiving Party may file the Confidential Material in the public

8

record unless otherwise instructed by the Court.

9

12.

No Prejudice: Agreeing to be bound by this Protective Order, agreeing

10

to and/or producing or receiving Confidential Material or otherwise complying with

11

the terms of this Order shall not:

12

a)

Prejudice in any way the rights of the parties to object to the

13

production of documents they consider not subject to discovery,

14

or operate as an admission by any party that the restrictions and

15

procedures set forth herein constitute adequate protection for

16

any particular information deemed by any party to be

17

Confidential Material;

18

b)

Prejudice in any way the rights of any party to object to the

19

authenticity or admissibility into evidence of any document,

20

testimony or other evidence subject to this Order;

21

c)

Prejudice in any way the rights of a party to seek a

22

determination by the Court whether any Confidential Material

23

should be subject to the terms of this Order; or

24

d)

Prejudice in any way the rights of a party to petition the Court

25

for a protective order relating to any purportedly confidential

26

information.

27
28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

13.

No Waiver of Privilege: Disclosure (including production) of

information that a Party or non-party later claims should not have been disclosed
9

PROTECTIVE ORDER

1

because of a privilege, including, but not limited to, the attorney-client privilege or

2

work product doctrine (“Privileged Information”), shall not constitute a waiver of,

3

or estoppel as to, any claim of attorney-client privilege, attorney work-product, or

4

other ground for withholding production as to which the Producing Party would be

5

entitled in the litigation or any other federal or state proceeding.

6

14.

Additional Parties or Attorneys: In the event additional parties join or

7

intervene in this action, the newly joined party shall not have access to Confidential

8

Material until its counsel has executed and, at the request of any party, filed with

9

the Court its agreement to be fully bound by this Order.

10
11
12

15.

No Prejudice For Further Relief: This Protective Order is without

prejudice to the right of any party to seek other or further relief from the Court.
16.

Conclusion of Litigation: Within ninety (90) days after receiving

13

notice of the entry of an order, judgment or decree finally disposing of this

14

Litigation, all persons having received Confidential Material shall either return such

15

material and all copies thereof to counsel for the Producing Party, or destroy all

16

such Confidential Material, and, in either case, certify that fact to counsel for the

17

Producing Party. Counsel of record shall make arrangements for the return of

18

Confidential Material that counsel of record provided to any persons or entities in

19

paragraph 7, except the Court, court personnel, and court reporters. Outside

20

counsel of record for the parties shall be entitled to retain court papers, depositions,

21

trial transcripts and attorney work product, provided that such outside counsel of

22

record shall not disclose Confidential Material to any person except pursuant to a

23

court order or agreement with the party that produced the Confidential Material.

24

All material returned to the parties or their counsel by the Court shall likewise be

25

disposed of in accordance with this paragraph.

26

17.

Redaction Allowed: Any Producing Party may redact from the

27

documents and things it produced matter that the Producing Party claims is subject

28

to attorney-client privilege or work product immunity. The Producing Party shall

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

10

PROTECTIVE ORDER

1

mark each thing where matter has been redacted with a legend stating

2

“REDACTED,” as appropriate, or a comparable notice. Where a document

3

consists of more than one page, at least each page on which information has been

4

redacted shall be so marked. The Producing Party shall preserve an unredacted

5

version of each such document.

6
7

18.

Challenges to Confidentiality Designations
a)

The parties will use reasonable care when designating any

8

documents, materials, items, or information as “Confidential –

9

Subject to Protective Order” or “Confidential – Subject to

10

Protective Order – COUNSEL’S EYES ONLY.” Nothing in

11

this Order shall prevent a Receiving Party from contending that

12

documents, material, or information designated as “Confidential

13

– Subject to Protective Order” or “Confidential – Subject to

14

Protective Order – COUNSEL’S EYES ONLY” have been

15

improperly designated. A Receiving Party may at any time

16

request that the Producing Party cancel or modify the

17

confidentiality designation with respect to any such document,

18

material, item, or the information contained therein.

19

b)

A Receiving Party shall not be obligated to challenge the

20

propriety of a “Confidential – Subject to Protective Order” or

21

“Confidential – Subject to Protective Order – COUNSEL’S

22

EYES ONLY” designation at the time made, and a failure to do

23

so shall not preclude a subsequent challenge thereto. Such a

24

challenge shall be written and served on counsel for the

25

Producing Party, and shall particularly identify the documents,

26

materials, items, or information that the Receiving Party

27

contends should be differently designated. The Receiving Party

28

and Producing Party shall use their best efforts to resolve

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

11

PROTECTIVE ORDER

1

promptly and informally such disputes. If agreement cannot be

2

reached, the Receiving Party may file a motion requesting that

3

the Court cancel or modify a “Confidential – Subject to

4

Protective Order” or “Confidential – Subject to Protective Order

5

– COUNSEL’S EYES ONLY” designation. Any such

6

application shall comply with Local Rule 37. Upon any such

7

application to the Court, the burden shall be on the Producing

8

Party to show that the challenged designation is proper.

9

19.

Prosecution Bar: No attorney who, as a result of representing a

10

Receiving Party, obtains, receives, has access to, or otherwise learns Confidential

11

Information of another party that is designated “Confidential – Subject to Protective

12

Order” or “Confidential – Subject to Protective Order – COUNSEL’S EYES

13

ONLY” shall prepare, prosecute, supervise, or assist in the preparation or

14

prosecution of any patent application, reexamination procedures, or reissue

15

procedures for the Receiving Party, or for any direct or indirect parent or subsidiary

16

company or affiliated or related entity or person, pertaining to software during the

17

pendency of this action and for two years after the conclusion of this action,

18

including any appeals.

19

20.

Subpoena from Third Party: If any person subject to this Order who

20

has custody of any Confidential Materials receives a subpoena or other process

21

(“Subpoena”) from any government or other person or entity demanding production

22

of Confidential Materials, the recipient of the Subpoena shall promptly give notice

23

of the same by electronic mail transmission, followed by either express mail or

24

overnight delivery to counsel of record for the Designating Party, and shall furnish

25

such counsel with a copy of the Subpoena. Upon receipt of this notice, the

26

Designating Party may, in its sole discretion and at its own cost, move to quash or

27

limit the Subpoena, otherwise oppose production of the Confidential Materials,

28

and/or seek to obtain confidential treatment of such Confidential Materials from the

B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

12

PROTECTIVE ORDER

1

subpoenaing person or entity to the fullest extent available under law. Absent

2

agreement of the Designating Party, the recipient of the Subpoena may not produce

3

any Confidential Materials prior to the date specified for production on the

4

Subpoena.

5

21.

Legal Advice: Nothing in this Order shall be interpreted to restrict an

6

attorney permitted to receive Confidential Material from rendering legal advice to

7

or discussing with her or his client the merits of any issue in this action as long as

8

the specific substance or content of the Confidential Material is not revealed to a

9

person who is not qualified to receive such information under the terms of this

10
11

Order.
22.

This Order shall govern as of the filing date of this lawsuit until

12

modified or superseded by a further Order of this Court and is without prejudice to

13

any Party moving to amend this Order at a later time. The restrictions and

14

mandates of this Order may be altered by written agreement of the parties or, as

15

applicable, the parties and any non-party.

16
17

23.

This Order shall remain in full force and effect after the termination of

this action, or until canceled or otherwise modified by Order of this Court.

18
19
20
21

Dated: February 1, 2016
_____________________

/S/

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

22
23
24
25
26
27
28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

13
PROTECTIVE ORDER

1

EXHIBIT “A”

2

ACKNOWLEDGMENT OF RECEIPT OF PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION AND AGREEMENT TO
BE BOUND THEREBY
I acknowledge receipt of a copy of the Protective Order, dated

3
4
5

, 20__ (the “Order”), and I agree that I will be bound by its terms and

6

provisions; and that I will not reveal the contents of any materials I obtain including

7
8
9

titles in connection with this litigation to anyone, except the parties or Court
personnel in this action.

I agree that, if I receive any document marked

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER – COUNSEL’S EYES ONLY,” or

10

otherwise designated as confidential within the terms of the Order, I will not make

11

any copies thereof without the written consent of the person furnishing such

12

document to me.

13
14
15
16

I agree that I will maintain a log, by Bates number, of all documents received
pursuant to this Order, and, if asked, shall produce that log to counsel for any
requesting party.
I agree that, within thirty (30) days after I receive notification that this
lawsuit has been concluded, I shall return to counsel for the producing party in a

17

manner that can be tracked (such as FedEx or UPS), all copies of confidential

18

documents that 1 have received pursuant to the terms of the Order.

19

I hereby consent to the personal jurisdiction of the United States District

20

Court for the Central District of California with regard to any matter related to or

21
22

arising out of the Order, and I acknowledge that I have read the Order and
understand its terms. I further acknowledge that I may be subject to sanctions by
the Court if I fail to comply with the terms and conditions of this Order.

23
24

SIGNED this

day of ____ _________ , 20

25
26

Signature of Recipient of Documents

27
28
B ARNES &
T HORNBURG LLP
ATTORNEYS AT LAW
LOS ANGELES

Print Name

14
PROTECTIVE ORDER

.