JMT Inc. v. Intermatic Inc. et al

Filing 35

AMENDED PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 34 . See order for details. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JMT INC., a California Corporation,
Plaintiff,

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v.

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CASE NO: 2:15-CV-08603 BRO-JC
C/W
2:15-CV-09320-BRO-JC
DISCOVERY MATTER

INTERMATIC INC., an Illinois
Corporation; BROAN-NUTONE,
LLC, a Delaware Corporation, and
DOES 1 to 10, inclusive,

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AMENDED PROTECTIVE ORDER

Defendants.

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SENTRY MUTUAL INSURANCE
COMPANY, as subrogee of JMT
INC.,
Plaintiff,

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v.
INTERMATIC INC., an Illinois
Corporation; BROAN-NUTONE,
LLC, a Delaware Corporation, and
DOES 1 to 25, inclusive,

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Defendants.

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1.

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As the parties have represented that discovery in this action is likely to

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A. PURPOSES AND LIMITATIONS

involve production of confidential, proprietary, or private information for which

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special protection from public disclosure and from use for any purpose other than

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prosecuting, defending or settling this litigation may be warranted, this Court enters

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the following Protective Order (“Order”). This Order does not confer blanket

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protections on all disclosures or responses to discovery. The protections of this

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Order extend only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. Further, including

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confidential information in any papers to be filed with the Court does not entitle the

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parties to file confidential information under seal. Rather, the parties must seek

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permission from the Court to file material under seal in accordance with Local Rule

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79-5.2.2 and any pertinent orders of the assigned District Judge and Magistrate

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Judge.

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B. GOOD CAUSE STATEMENT
In light of the nature of the claims and allegations in this case and the

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parties’ representations that discovery in this case will involve the production of

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confidential material, and in order to expedite the flow of information, to facilitate

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the prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

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ensure that the parties are permitted reasonably necessary uses of such material in

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connection with this action, to address their handling of such material at the end of

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the litigation, and to serve the ends of justice, a protective order for such

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information is justified in this matter. The parties shall not designate any

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information or documents as confidential without a good faith belief that such

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information or documents have been maintained in a confidential, non-public

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manner, and that there is good cause or a compelling reason why it should not be

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part of the public record of this case.

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2.

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2.1 Action: The consolidated actions titled JMT Inc. v. Intermatic

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DEFINITIONS

Inc. et al., Case No. 2:15-CV-08603 BRO-JC and Sentry Mutual Insurance
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Company, as subrogee of JMT Inc. v. Intermatic Inc. et al., Case No. 2:15-CV-

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09320-BRO-JC.

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2.2 Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.

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2.3 “CONFIDENTIAL” Information or Items: information (regardless

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

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or

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Items, the disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.

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2.5 Counsel: attorneys retained to represent a party to this Action and

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are designated counsel of record, as well as their support staff.

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2.6 House Counsel: attorneys who are employees of a Party.

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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2.8 Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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

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

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matter pertinent to the litigation who has been retained by a Party or its Counsel to

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serve as an expert witness or as a consultant in this Action.

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2.10 Party: any party to this Action, including all of its officers,
directors, employees, consultants, retained experts, and Counsel.
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2.11 Non-Party: any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this action.

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2.12 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” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

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The protections conferred by this Order cover not only Protected

SCOPE

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Material but also (1) any information copied or extracted from Protected Material;

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(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

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any deposition testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material, other than during a court hearing or at

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trial.

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Any use of Protected Material during a Court hearing or at trial shall

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be governed by the Orders of the presiding judge. This Order does not govern the

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use of Protected Material during a Court hearing or trial.

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4.

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The confidentiality obligations imposed by this Order shall remain in

DURATION

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effect, even after final disposition of this litigation, 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 in this Action with prejudice; or

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(2) final judgment herein after the completion and exhaustion of all appeals,

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rehearings, remands, trials, or reviews of this Action, including the time limits for

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

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5.

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5.1 Limitations: Each Party or Non-Party that designates information

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or items for protection under this Order must limit any such designation to specific

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material that qualifies under the appropriate standards, and designate only those

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parts of material, documents, items, or oral or written communications that qualify

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

DESIGNATING PROTECTED MATERIAL

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

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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

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improper purpose (including but not limited to unnecessarily encumbering the case

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development process, or imposing unnecessary expenses and burdens on other

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parties) may expose the Designating Party to sanctions.

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If it comes to the attention of a Designating Party that information or

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items that it designated for protection do not qualify for protection, the Designating

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Party must promptly notify all other Parties and Non-Parties that it is withdrawing

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the inapplicable designation, with specificity.

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5.2 Manner and Timing of Designations: Except as otherwise

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provided in this Order, or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or 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), that the Producing Party affix

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page that contains Protected Material. If only a portion of

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

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identify the protected portion by making appropriate markings in the margins, and

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must specify, for each portion, the level of protection being asserted (either

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY”).

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

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

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has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” legend to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b) for testimony given in deposition, that the Designating Party

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identifies on the record, before the close of the deposition, that the testimony be

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separately marked by the Court Reporter as Protected Material. When it appears

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that substantial portions of the testimony may qualify for protection, but it is

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impractical to identify separately each portion of testimony that is entitled to

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protection without unnecessarily delaying the deposition, the Party or Non-Party

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that sponsors, offers, or gives the testimony may invoke on the record (before the

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deposition is concluded) a right to have an opportunity to review a rough draft of

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the transcript, at the expense of the requesting party, and within 10 days after

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receipt of the rough draft transcript, to identify the specific portions of the

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testimony as to which protection is sought and to specify the level of protection

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being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY”), and to advise all other parties of the protection

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being sought. Only those portions of the testimony that are appropriately designated

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for protection within the 10 days shall be covered by the provisions of this Order. It

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shall be the obligation of the Party seeking protection under this Order to ensure, at

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the expense of the party designating protection, that in preparing the certified

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transcript the court reporter separately binds the pages containing Protected

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Material, and affixes to the top of each such page the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the

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Party or Non-Party offering or sponsoring the witness or presenting the testimony;

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and

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(c) for information produced in a form other than documentary

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

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

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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3 Inadvertent Failures to Designate: If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for

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

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make 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.

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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 Civil

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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Trial 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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6.3 Burden: The burden of persuasion in any proceeding to challenge

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a designation of confidentiality shall be on the Designating Party. Frivolous

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challenges or those made for an improper purpose, such as to harass or impose

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unnecessary expenses and burdens on other parties, may expose the Challenging

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Party to sanctions. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all Parties and Non-Parties shall continue to afford the

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material in question the level of protection to which it is entitled under the

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Producing Party’s designation until the Court rules on the challenge.

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7.

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7.1 Basic Principles: A Receiving Party may use Protected Material

ACCESS TO AND USE OF PROTECTED MATERIAL

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that is disclosed or produced by another Party or 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 the

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conditions described in this Order. Upon final disposition of the Action, a

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Receiving Party must comply with the provisions of Section 12 below. Protected

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Material must be stored and maintained by a Receiving Party at a location and in a

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secure manner that ensures that access is limited to the persons authorized under

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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 information or items designated “CONFIDENTIAL”

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only to:

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(a) Receiving Party’s Counsel, as well as employees of said
Counsel, to whom disclosure is reasonably necessary for this Action;
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(b) officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this Action;

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(c) Receiving Party’s Experts to whom disclosure is reasonably

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necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the Court and its personnel;

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(e) private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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

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A);

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(g) the author or recipient of the information or items or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses and their attorneys to whom
disclosure is reasonably necessary for this Action, provided that:
(1)

the witnesses and their attorneys sign the

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and
(2)

the witnesses and their attorneys will not be

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permitted to keep any confidential information, unless otherwise agreed by the

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Designating Party or ordered by the Court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be

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separately bound by the court reporter, as requested under Section 5.2(b), and may

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not be disclosed to anyone except as permitted under this Protective Order; and

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

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions, and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A).

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7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” Information or Items: Unless otherwise ordered by the Court or

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permitted in writing by the Designating party, a Receiving Party may disclose

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information or items designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” only to:

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(a) Receiving Party’s Counsel, as well as employees of said
Counsel, to whom disclosure is reasonably necessary for this Action;

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(b) Receiving Party’s Experts to whom disclosure is reasonably

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necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(c) the Court and its personnel;

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(d) private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(e) professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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

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A);

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(f) the author or recipient of the information or items or a

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custodian or other person who otherwise possessed or knew the information;

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(g) any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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

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Bound” (Exhibit A).

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a Court Order issued in other
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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” that Party must:

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(a) promptly notify the Designating Party, in writing (by fax or

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email, if possible) immediately and in no event more than three court days after

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receiving the subpoena or order. Such notification shall include a copy of the

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subpoena or court order unless prohibited by law;

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

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

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the subpoena or Order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and

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(c) cooperate with the Designating Party whose Protected Material

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may be affected in pursuing all reasonable procedures related to the subpoena or

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Court Order.

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If the Designating Party timely seeks a protective order, the Party

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served with the subpoena or Court Order shall not produce any information

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designated in this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” before a determination by the Court from which the

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

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permission, or unless otherwise required by the law or Court Order. The

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Designating Party shall bear the burden and expense of seeking protection in that

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Court of its confidential material and nothing in these provisions should be

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

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a lawful directive from another Court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by
a Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced

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

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relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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

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

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

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;

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

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the
Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the

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process called for by Local Rules 45-1 and 37-1 within fourteen (14) days of

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receiving the notice and accompanying information or fails contemporaneously to

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notify the Receiving Party that it has done so, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If an

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unrepresented Non-Party fails to seek a protective order from this court within

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fourteen (14) days of receiving the notice and accompanying information, the

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

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

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the Court, unless otherwise required by the law or Court order.

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

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

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

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

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

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and Agreement to Be Bound” (Exhibit A).

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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

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement into this Order.

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11. MISCELLANEOUS

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11.1 Right to Further Relief: Nothing in this Order abridges the right

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of any Party to seek its modification by the Court in the future.
11.2 Right to Assert Other Objections: No Party waives any right it

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otherwise would have to object to disclosing or producing any information or item

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on any ground not addressed in this Protective Order, and no Party waives any right

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to object on any ground to the use in evidence of any of the material covered by this

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Protective Order.

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11.3 Filing Protected Material: A Party that seeks to file any papers

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with the Court that contain any Protected Material must seek permission from the

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Court to file the Protected Material under seal in compliance with Local Rule 79-

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5.2.2 and any pertinent Orders of the District Judge and Magistrate Judge. Protected

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Material may only be filed under seal pursuant to a Court Order authorizing the

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sealing of the specific Protected Material at issue. If a Party’s request to file

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Protected Material under seal is denied by the Court, then the Receiving Party may

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file the information in the public record unless otherwise instructed by the Court.

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12. FINAL DISPOSITION

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Within 60 days after the final disposition of this Action, as defined in

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

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Party or 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, except that Counsel may

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

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

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

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

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

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in Section 4.

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Whether the Protected Material is returned or destroyed, the Receiving

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Party must submit a written certification to the Producing Party (and, if not the

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same person or entity, to the Designating Party) by the 60-day deadline that (1)

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

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returned or destroyed, and (2) affirms that the Receiving Party has not retained any

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

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capturing any of the Protected Material.

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

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

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monetary sanctions.

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IT IS SO ORDERED.

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DATED: February 23, 2016
/s/
Honorable Jacqueline Chooljian
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________________________, declare under penalty

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of perjury under the laws of the United States of America and the State of

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California that I have read in its entirety and understand the terms of the Protective

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

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California on February 23, 2016 in the consolidated cases titled JMT Inc. v.

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Intermatic Inc., et al., Case No. 2:15-CV-08603 BRO-JC and Sentry Mutual

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Insurance Company, as subrogee of JMT Inc. v. Intermatic Inc. et al., Case No.

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2:15-CV-09320-BRO-JC. I agree to comply with and to be bound by all the terms

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of the Protective Order and I understand and acknowledge that my failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item

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that is subject to this Protective Order to any person or entity except in strict

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compliance with the provisions of the Protective Order.

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

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

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the Protective Order, even if such enforcement proceedings occur after termination

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of this action.

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Dated: ________________

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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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Address: _____________________________________

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