Vina Undurraga S.A. v. Serine Cannonau Vineyard, Inc

Filing 47

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 46 . NOTE CHANGES MADE BY THE COURT. (See Order for Further Details) (kl)

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W. Michael Hensley, CA Bar No. 90437
ALVARADO SMITH
A Professional Corporation
1 MacArthur Place, Suite 200
Santa Ana, California 92707

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Alan S. Cooper (Admitted pro hac vice)
WESTERMAN, HATTORI, DANIELS
&ADRIAN
1250 Connecticut Avenue N.W.
Washington, D.C.

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ANNE HIARING HOCKING, #88639
JOHN C. KIRKE, #175055
DANIEL H. SENTER, #271626
DONAHUE FITZGERALD LLP
Attorneys at Law
1999 Harrison Street, 25th Floor
Oakland, California 94612-3520

ATTORNEYS FOR PLAINTIFF

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Attorneys for Defendant
SERINE-CANNONAU VINEYARD, INC.

VIÑA UNDURRAGA S.A.
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IN THE UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VIñA UNDURRAGA S.A., a Chilean corporation,
Vitacura 2939, Piso 21, Las Condes Santiago, Chile,
Plaintiff,

Case No. 2:15-cv-09658-PSG-JPR
STIPULATED PROTECTIVE ORDER

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v.
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NOTE CHANGES MADE BY THE
COURT

SERINE-CANNONAU VINEYARD, INC., dba
Terry Hoage Vineyards, a California corporation,
870 Arbor Road Paso Robles, California 93446,
Defendant.
Defendants.

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1.

PURPOSES AND LIMITATIONS
The disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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the parties hereby stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures

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or responses to 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 under the
applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that
this Stipulated Protective Order does not entitle them to file confidential information under seal;
Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
2.

DEFINITIONS
2.1.

Challenging Party: a Party or Non-Party that challenges the designation of information or

items under this Order.
2.2.

“CONFIDENTIAL” Information or Items: information (regardless of how it is generated,

stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil
Procedure 26(c).
2.3.

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as

their support staff).
2.4.

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

produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5.

Disclosure or Discovery Material: all items or information, regardless of the medium or

manner in which it is generated, stored, or maintained (including, among other things, testimony,
transcripts, and tangible things), that are produced or generated in disclosures or responses to
discovery in this matter.
2.6.

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.
2.7.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

extremely sensitive information (regardless of how it is generated, stored or maintained) or tangible
things that qualify for protection under Federal Rule of Civil Procedure 26(c) and whose disclosure

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to another Party or Non-Party would create a substantial risk of serious injury that could not be
avoided by less restrictive means.

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2.8.

does not include Outside Counsel of Record or any other outside counsel.

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2.9.

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2.10. Outside Counsel of Record: attorneys who are not employees of a party to this action but
are retained to represent or advise a party to this action and have appeared in this action on behalf of
that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.11. Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their 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 support services (e.g.,
photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
storing, or retrieving data in any form or medium) and their employees and subcontractors.

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2.14. Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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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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House Counsel: attorneys who are employees of a party to this action. House Counsel

2.15. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing
Party.
3.

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.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a Receiving

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Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
publication not involving a violation of this Order, including becoming part of the public record
through trial or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to the Designating Party. Any use of
Protected Material at trial shall be governed by a separate agreement or order.
4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by this
Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
time limits for filing any motions or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non

Party that designates information or items for protection under this Order must take care to limit any
such designation to specific material that qualifies under the appropriate standards. The Designating
Party must designate for protection only those parts of material, documents, items, or oral or written
communications that qualify – so that other portions of the material, documents, items, or
communications for which protection is not warranted are not swept unjustifiably within the ambit of
this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process or to impose unnecessary expenses
and burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated
for protection do not qualify for protection at all or do not qualify for the level of protection initially

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asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the
mistaken designation.
5.2.

Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g.,

second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
Discovery Material that qualifies for protection under this Order must be clearly so designated
before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” to each page that contains protected material. If only a portion or portions of the material on
a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins) and must specify, for each portion, the level
of protection being asserted.
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which material it
would like copied and produced. During the inspection and before the designation, all of the material
made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.” After the inspecting Party has identified the documents it wants copied and
produced, the Producing Party must determine which documents, or portions thereof, qualify for
protection under this Order. Then, before producing the specified documents, the Producing Party
must affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” legend to each page that contains Protected Material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in discovery-related proceedings, that the
Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any other
tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information
or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s) and specify the level of protection being asserted.

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate

qualified information or items does not, standing alone, waive the Designating Party’s right to secure
protection under this Order for such material. Upon timely correction of a designation, the Receiving
Party must make reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the original
designation is disclosed.
6.3.

6.2.

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process by providing written notice of each designation it is challenging and describing the basis for
each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to confidentiality is being made in accordance with this specific paragraph
of the Protective Order. The parties shall attempt to resolve each challenge in good faith pursuant to
Local Rule 37-1. In conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in designation is
offered, to explain the basis for the chosen designation. Judicial Intervention. If the Parties cannot
resolve a challenge without court intervention pursuant to strict compliance under Local Rule 37-1,
the Designating Party shall file and serve a Joint Stipulation, Supplemental Memorandum and Motion
to retain confidentiality in strict compliance with Local Rules 37-2 through 37-4. Failure by the
Designating Party to make such a motion with appropriate submissions under Local Rule 37 within

30 days from the date of the written notice described in paragraph 6.2 above shall automatically
waive the confidentiality designation for each challenged designation. In addition, the Challenging
Party may file a motion challenging a confidentiality designation, if there is good cause for doing so,
including a challenge to the designation of a deposition transcript or any portions thereof. Any
motion brought pursuant to this provision must strictly comply with Local Rules 37-1 through 37-4.

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The burden of persuasion in any such motion under this provision shall be on the
Designating Party. Frivolous motions under this provision, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the
Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality
designation by failing to file a motion to retain confidentiality as described above, all parties shall
continue to afford the material in question the level of protection to which it is entitled under the
Producing Party’s designation until the court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

produced by another Party or by a Non-Party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the

court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving
Party to whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably
necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material must be separately
bound by the court reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.

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7.3.

or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees
of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is
attached hereto as Exhibit A;

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(b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);

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(c) the court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants, mock jurors, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information

(e) the author or recipient of a document containing the information or a custodian or other
person who otherwise possessed or knew the information.
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 litigation that compels

disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in the
other litigation that some or all of the material covered by the subpoena or order is subject to this
Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a
determination by the court from which the subpoena or order issued, unless the Party has obtained
the Designating Party’s permission or a court so orders. The Designating Party shall bear the burden
and expense of seeking protection in that court of its confidential material – and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in this action to
disobey a lawful directive from another court.
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 CONFIDENTIAL – ATTORNEYS’
EYES ONLY.” 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 NonParty’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:
(1) promptly notify in writing the Requesting Party and the Non-Party that some or
all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
this litigation, the relevant discovery request(s), and a reasonably specific description of the
information requested; and
(3) make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the
Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
seeks a protective order, the Receiving Party shall not produce any information in its possession or
control that is subject to the confidentiality agreement with the Non-Party before a determination by
the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
seeking protection in this court of its Protected Material.
10.

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain 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 provided the
Court so allows.
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.

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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.

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12.3. Filing Protected Material. Without written permission from the Designating Party or a
court order secured after appropriate notice to all interested persons, a Party may not file in the
public record in this action any Protected Material. A Party that seeks to file under seal any Protected
Material must comply with Civil Local Rule 79-5.
13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected Material. Any such archival copies
that contain or constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).

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///
///
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: December 22, 2016

Respectfully submitted,

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ALVARADO SMITH , A/C
and
WESTERMAN, HATTORI, DANIELS
& ADRIAN, LLP

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By: /Alan S. Cooper/

Alan S. Cooper
Attorneys for Plaintiff Counter
Defendant

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By: /W. Michael Hensley
W. Michael Hensley
Attorneys for Plaintiff Counter
Defendant

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VIÑA UNDURRAGA S.A.

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Dated: December 20, 2016

DONAHUE FITZGERALD LLP

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By________________________
Anne Hiaring Hocking
Attorneys for Defendant
SERINE-CANNONAU VINEYARD,
INC.

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ATTESTATION: Pursuant to Civil L.R. 5-1(i)(3), the filer attests that concurrence in the filing of
this document has been obtained from each of the other signatories thereto.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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_________________________________
JEAN ROSENBLUTH

DATED: December 28, 2016

Hon. Jean P. Rosenbluth
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _____________________ [print
or type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order that was issued by the United States District Court for the Central
District of California on__________ [date] in the case of ______________________ [insert formal
name of the case and the number and initials assigned to it by the court]. I agree to comply with and
to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge
that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person 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 the Central District

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of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of _________________
_______________________ [print or type full address and telephone number] as my California
agent for service of process in connection with this action or any proceedings related to enforcement
of this Stipulated Protective Order.

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Date: ______________________________________
City and State where sworn and signed: _________________________________

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Printed name: _______________________________
Signature: __________________________________

27
28
1