DotConnectAfrica Trust v. Internet Corporation For Assigned Names and Numbers et al

Filing 120

JOINT STIPULATED PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 114 . [CHANGE MADE TO PARAGRAPH 9] (dml)

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Jeffrey A. LeVee (State Bar No. 125863)
[e-mail]
Kate Wallace (State Bar No. 204447)
[e-mail]
Rachel T. Gezerseh (State Bar No. 251299)
[e-mail]
Charlotte S. Wasserstein (State Bar No. 279442)
[e-mail]
JONES DAY
555 South Flower Street
Fiftieth Floor
Los Angeles, CA 90071.2300
Telephone: [phone]
Facsimile: +1.213.243.2539
Attorneys for Defendant
INTERNET CORPORATION FOR ASSIGNED
NAMES AND NUMBERS

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DOTCONNECTAFRICA TRUST,

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Plaintiff,
v.
INTERNET CORPORATION FOR
ASSIGNED NAMES AND
NUMBERS, a California corporation;
ZA Central Registry, a South African
non-profit company; DOES 1 through
50, inclusive,

Case No. CV 16-00862-RGK(JCx)
Assigned for all purposes to the
Honorable R. Gary Klausner
ORDER RE JOINT
STIPULATED PROTECTIVE
ORDER [CHANGE MADE TO
PARAGRAPH 9]

Defendant.

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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WHEREAS, the parties to this case, Plaintiff DotConnectAfrica Trust
(“Plaintiff”) and Defendants Internet Corporation for Assigned Names and
Numbers (“ICANN”) and ZA Central Registry “(ZACR”), (together, “Defendants”),
by and through their respective attorneys of record, have stipulated to the entry of
the following Protective Order pursuant to Federal Rule of Civil Procedure 26(c),
and having considered the parties’ Joint Stipulated Protective Order, and good
cause appearing, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Scope

This Order shall be applicable to and govern all documents, things and
information produced, furnished or created during the course of this Action,
including any materials or information sought from a non-party who receives a
subpoena in connection with this Action or otherwise produces materials or
information in this Action. The information protected includes but is not limited to:
materials and information produced in response to requests for production of
documents; answers to interrogatories; answers to requests for admission; responses
to requests for production of documents; deposition testimony, exhibits, transcripts,
and videotapes; all other discovery, pleadings, briefs, memoranda, affidavits,
transcripts; and other materials furnished by or on behalf of any Party to this Action.
Any summary, analysis, description, compilation, notes, excerpt, copy, electronic
image or database containing Confidential Material as defined below shall be
subject to the terms of this Order to the same extent as the material or information
from which such summary, analysis, description, compilation, notes, excerpt, copy,
electronic image, or database is made or derived.
This Order applies to all documents and information produced in this Action
regardless of whether such document or information was produced prior to or after
entry of this Order.

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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In the event that non-parties produce documents or information in connection
with this Action, the production of such documents may be made subject to the
provisions of this Order. As necessary and appropriate to uphold the terms of this
Order, the existence of this Order may be disclosed to any person (including any
non-party served with a subpoena in this action) producing documents, tangible
things, information, or testimony in this Action.
Nothing in this Order is intended to conflict with the applicable Local Rules.
Insofar as anything in this Order could be interpreted as conflicting with the
applicable Local Rules, the Local Rules will govern. Any use of Confidential
Material as defined below during a court hearing or at trial shall be governed by the
orders of the presiding judge.
2.

Definitions

The term “Confidential Material” shall mean material designated
"Confidential" or “Highly Confidential – Attorneys’ Eyes Only” pursuant to this
Order.
The term “Producing Party” means the Party or non-party producing or
disclosing documents or information that are designated as Confidential Material
under this Order.
The term “Receiving Party” shall mean the Party or Parties to whom
Confidential Material is produced or otherwise disclosed.
3.

Good Cause Statement

Good cause exists because if such Confidential Material was produced
without a protective order in place, then, among other things: the privacy rights of
third parties protected under Constitutional, statutory, and common law principles
would be violated; third parties could be exposed to embarrassment, theft, fraud, or
harassment; a Producing Party could be accused of breaching a statutory,
contractual, or common law duty to protect private and/or proprietary information

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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from public disclosure; and/or competitors could unfairly leverage the time, money,
and expertise invested by a Producing Party to develop non-public, proprietary
information (such as business and marketing plans, research, pricing and sales
information, and trade secrets), and thereby irreparably injure the Producing Party
in the marketplace. Accordingly, to expedite the flow of information but also
adequately protect Confidential Material, a protective order is justified. It is the
intent of the parties that information will not be designated as confidential for
tactical reasons and that nothing be so designated without a good faith belief that it
has been maintained in a confidential, non-public manner, and there is good cause
to protect it.
4.

Confidential Material
a. “Confidential” Information: Any Party or non-party may designate
information or documents produced in this Action as “Confidential” if
such Party or non-party has the reasonable and good faith belief that
such information is non-public and constitutes her, his, or its trade
secret, other confidential information within the meaning of Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure, or otherwise
protected from public disclosure. This includes but is not limited to
confidential research, development, or commercial information (as
those terms are used in Fed. R. Civ. P. 26(c)), and personal medical
information, private personal information, employment information,
health information, and tax returns.
b. “Highly Confidential – Attorneys' Eyes Only” Information: “Highly
Confidential – Attorneys’ Eyes Only” information, for purposes of this
Order, is Confidential Material that the Producing Party determines in
good faith would create a risk of serious injury that could not be
avoided by less restrictive means, likely having the effect of causing

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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harm to the business of the Producing Party if disclosed including, for

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example and without limitation, information of a proprietary nature

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that might reasonably be of value to a person or entity with adverse

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interests to the Party or non-party holding the proprietary rights to the

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information, or information of a private and sensitive nature that might

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reasonably be of value to a person or entity with adverse interests to

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the Producing Party or non-party to whom the information relates.

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5.

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Any information supplied in documentary or other tangible form may be
designated by the Producing Party as Confidential Material by marking or stamping
on each page of such document, transcript, or exhibit, or on the face of such thing,
the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.” Where such marking of material is impossible or impractical (such
as groups of documents in native form), the Producing Party shall designate in
writing, at the time of its production, that the material contains Confidential
Material and whether it is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” Information produced by a non-party but
subsequently designated as confidential by a party to the Action shall be treated as
Confidential Material, and the recipients shall either mark their copies as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY," or request that the Producing Party provide a replacement set so marked.

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6.

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Designating Confidential Material

Use of Information

All information or documents disclosed in this Action, whether or not
containing Confidential Material, shall be used solely for purposes of this Action
and not in connection with any other litigation or judicial or regulatory proceeding
or for any business, commercial, competitive, personal or other purpose.
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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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7.

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Eyes Only Information

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Disclosure of documents designated as “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” shall be limited to the following entities and individuals, unless
otherwise ordered by the Court or permitted in writing by the Producing Party:

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a. The Parties’ counsel who are actively engaged in the Action, including

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their associates, clerks, paralegals, investigators, stenographic

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personnel, litigation support contractors, contract attorneys, and such

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other regular and temporary employees who assist counsel in the

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conduct of such Action, including employees of any firm retained to

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reproduce the discovery material for use in accordance with this

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Stipulated Protective Order;

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b. The United States District Court for the Central District of California,

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its Judges, law clerks, judicial assistants, clerks and stenographic

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personnel in connection with the Action in accordance with the terms

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of this Stipulated Protective Order;

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c. The individuals described below:

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i.

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at trial or any other proceeding in the Action, provided

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each such individual has read this Stipulated Protective

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Order in advance of disclosure, and has agreed in writing

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to be bound by its terms in the form attached hereto as

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Any outside expert or consultant retained by counsel or a
Party to assist in the preparation of this case, or to testify

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Restrictions on the Disclosure of Highly Confidential – Attorneys'

Exhibit A;
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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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ii.

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individuals described in paragraph 7(c)(i), provided,

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however, that such employees need not execute the form

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attached hereto as Exhibit A; and

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iii.

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document, or otherwise has knowledge of the information,

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provided, however, that such person need not execute the

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form attached hereto as Exhibit A.
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to the following entities and individuals, unless otherwise ordered by the Court or
permitted in writing by the Producing Party:
a. Those individuals described in Paragraph 7;

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b. The Parties, their principals, officers, directors, and employees of the

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Party; and

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c. Actual deposition or trial witnesses (including use in connection with

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the preparation of said witnesses), provided that each such individual

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has read this Stipulated Protective Order in advance of disclosure, and

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has agreed in writing to be bound by its terms in the form attached

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Restrictions on the Disclosure of Confidential Information

Disclosure of documents designated as “CONFIDENTIAL” shall be limited

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Any person who is the original source of the information,
is specifically identified as an author or recipient of the

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Stenographic and clerical employees associated with the

hereto as Exhibit A.
Proof of each written agreement provided for under paragraphs 7(c) and 8(c)
shall be preserved by each of the Parties while the Action is pending and turned
over to the other Parties if the Court so orders.
9.

Filing of Under Seal Documents

If any Party or non-party wishes to submit any Confidential Material to the
Court, the person shall, unless directed by the Court to do otherwise, comply with

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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Local Rule 79-5 and with any pertinent orders of the assigned District Judge and
Magistrate Judge. If a Party or non-party’s requests to maintain a submission
containing Confidential Material under seal is denied as to one or more submissions,
and the Party or non-party does not seek reconsideration under the applicable Local
Rules or otherwise appeal the denial, then those submissions may be placed in the
public record.
10.

Procedure for Designating Deposition Testimony

In the event that any question is asked at a deposition that involves or calls
for the disclosure of Confidential Material, the witness shall nevertheless answer
such question unless he or she has an independent basis for not responding,
provided that the only persons in attendance at the deposition are persons who are
permitted to receive the Confidential Material. Testimony given at a deposition
may be designated as Confidential Material by making a statement to that effect on
the record. Alternatively, within thirty (30) business days after receipt of a
transcript, the parties also may designate such transcript or any portion thereof by
notifying all Parties, in writing, of the specific pages and lines of the transcript
which should be treated as Confidential Material. All deposition transcripts shall
be treated as "Confidential" or “Highly Confidential – Attorneys’ Eyes Only” until
thirty (30) business days after receipt thereof by counsel for the Parties and counsel
for the witness. The reporter for any deposition shall mark the transcript with the
legend "CONFIDENTIAL" or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” pages that contain testimony designated as Confidential Material
during the deposition.
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Use of Confidential Material at Pre-trial Hearings

This order does not govern the conditions under which Confidential Material
can be used at pre-trial or trial proceedings. The Parties, however, stipulate to
provide at least seven days notice to the Producing Party of any Confidential

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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Material that the Receiving Party reasonably anticipates that it may use at a pre-trial
hearing so that the Producing Party can take steps in advance of any such hearing to
seek a separate protective order regarding the use or disclosure of such Confidential
Material.
12.

Inadvertent Production of Privileged Materials

Pursuant to Fed. R. Evid. 502(d), disclosure of privileged or otherwise
protected information is not waived for purposes of other actions or proceedings by
inadvertent disclosure in this action. In the event any document is produced that the
Producing Party later claims is protected by the attorney-client privilege, work
product doctrine or other privilege or immunity, the production shall not be deemed
a waiver or impairment of any claim of privilege or protection or the subject matter
thereof, provided that the Producing Party shall immediately notify the Receiving
Party in writing when the inadvertent production is discovered. Within five (5)
business days of receiving written notice, along with a log accurately describing
such material consistent with Fed. R. Civ. P. 26(b)(5)(A), from the Producing Party
that privileged or protected information has been inadvertently produced, the
Receiving Party shall (a) return all such information, and all copies thereof, to the
Producing Party, reviewing such information (if at all) no more than is permitted by
the applicable ethical rules; (b) take all reasonable steps to retrieve the information
if the Receiving Party disclosed it before being notified; and (c) certify that any
materials prepared by the Receiving Party incorporating such information, such as
notes, memoranda, etc., have been destroyed. If the Receiving Party wishes to
challenge the claimed privilege, work-product protection or immunity, the
Receiving Party must still comply with (a) and (b) in the preceding sentence, except
that the Receiving Party may retain any notes referencing the Confidential Material
insofar as such retention is permitted by the applicable ethical rules and the notes
are necessary to comply with Local Rule 37.

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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In the event the Receiving Party wishes to challenge the claimed privilege,
work-product protection or immunity, the parties shall comply with Local Rule 37
in resolving their dispute. The parties agree any permissible retention of notes
referencing the Confidential Material for the sole purpose of complying with Local
Rule 37 shall not be grounds for arguing that the document is not privileged, workproduct-protected or otherwise immune, or that any privilege, protection or
immunity was waived thereby. During the pendency of the Local Rule 37 process,
the Receiving Party shall make no other use or disclosure of the subject material or
the information contained therein. If the motion is unsuccessful, the Receiving
Party shall comply with subsection (c) noted above.

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13.

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Inadvertent failure to designate any material or information as Confidential
Material pursuant to this Order shall not constitute a waiver of any otherwise valid
claim for protection and may be remedied by supplemental written notice. If such
notice is given, all information so designated shall be fully subject to this Order as
if it had been initially designated as Confidential Material. After any designation is
made in accordance with this paragraph, arrangements shall be made for the return
to the Producing Party of all copies of the inadvertently undesignated documents
and for the substitution, where appropriate, of properly labeled copies.

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14.

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Inadvertent Failure to Designate

Purpose of Order

Nothing in this Order, nor the production of any documents or disclosure of
any information pursuant to this Order, shall be deemed to have the effect of (i) an
admission or waiver, including waiver under the rules of evidence, by any Party or
other subscriber to this Order; (ii) altering the confidentiality or nonconfidentiality
of any such information; or (iii) altering any existing obligation of any Party or
other subscriber, or the absence of such obligation.
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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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Challenges to Confidentiality Designation

If the Receiving Party disagrees with the confidentiality designation by the
Producing Party, then the parties shall comply with Local Rule 37 in resolving the
dispute. Pending a determination by the Court, such information shall be treated by
all parties as "Confidential" or “Highly Confidential – Attorneys’ Eyes Only” in
accordance with this Order.
16.

Subpoenas

If Confidential Material in the possession, custody, or control of any
Receiving Party subject to this Order is sought by subpoena, motion, or other form
of discovery request or compulsory process, the Receiving Party to whom the
process or discovery request is directed, shall (i) on or before the second business
day after receipt thereof, give telephonic notice and written notice by hand,
facsimile, or e-mail of such process or discovery request, together with a copy
thereof, to counsel for the Producing Party; (ii) cooperate to the extent necessary to
permit the Producing Party to seek to quash or modify such process or discovery
request, consistently with Local Rules 37 and 45; and (iii) not make production or
disclosure of such Confidential Material until the Producing Party consents in
writing to production or the Receiving Party is required by a court order to produce
such Confidential Material, so long as the order is not stayed prior to the date set
for production or disclosure.
17.

Disposition Upon Conclusion

Within sixty (60) days after final termination of this Action, including all
appeals, all Parties and experts, consultants and witnesses shall (i) return to the
Producing Party or destroy all originals of material produced and designated as
Confidential Material and all identical copies, whether in whole or in part, of such
documents; and (ii) destroy all copies thereof, as well as all notes, memoranda or
other documents that summarize, discuss or quote materials produced and

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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designated as Confidential or Highly Confidential – Attorneys’ Eyes Only, except
that, with respect to word processing and database tapes and disks, they shall
destroy or erase such tapes or disks to the extent practicable. Outside counsel for
each Party shall be entitled to retain copies of any deposition transcripts and
exhibits and any pleadings, motions, memoranda, or exhibits that have been filed
with the Court or admitted into evidence and that contain or refer to information
designated as Confidential or Highly Confidential – Attorneys’ Eyes Only,
provided that all such documents shall remain subject to this Order. Counsel of
record for the Parties shall certify in writing to each Producing Party that the
foregoing has been complied with.

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18.

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This Order shall not limit a Producing Party’s use of its own Confidential
Material. Such disclosures shall not affect any designation of documents as
Confidential or Highly Confidential – Attorneys’ Eyes Only.

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19.

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Remedies

If Confidential Material is disclosed to or comes into the possession of any
person other than in a manner authorized in this Order, the party responsible for the
disclosure shall immediately (1) inform those persons of this Order; and (2) inform
the person who designated the material as Confidential Material and the other
Parties already subject to this Order that are in possession of such Confidential
Material of all pertinent facts relating to such disclosure and shall make reasonable
efforts to prevent further disclosure by each unauthorized person who received
Confidential Material.

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Parties’ Own Information

This Confidentiality Order will be enforced under United States law. All
other remedies available to any person injured by a violation of this Confidentiality
Order are fully reserved.
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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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20.

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Notice under this Confidentiality Order shall be to the Parties as follows,
unless this provision is modified by the Parties in writing and filed with this Court:

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Notice to ICANN shall be made to:
Jeffrey A. LeVee, Esq.
JONES DAY
555 South Flower Street, Fiftieth Floor
Los Angeles, CA 90071-2300

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Notice to ZACR shall be made to:
David W. Kesselman, Esq.
KESSELMAN BRANTLY STOCKINGER LLP
1230 Rosecrans Ave., Suite 690
Manhattan Beach, CA 90266

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Notice to Plaintiff shall be made to:
Ethan J. Brown, Esq.
BROWN NERI & SMITH LLP
11766 Wilshire Boulevard, Suite 1670
Los Angeles, CA 90025

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21.

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extend or modify deadlines under this Order by written stipulation amongst
themselves or, where applicable, with third parties.
The Court retains jurisdiction to amend or modify this Order upon stipulation
of the Parties to this Action, motion by a Party or non-party, or on its own motion.

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Jurisdiction

Unless prohibited by a statute, court order, or applicable rule, the parties may

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Notice

Right to Assert Other Objections

By stipulating to the entry of this 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 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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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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23.

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Nothing in this Order abridges the right of any person to seek its
modification by the Court in the future.

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Right to Further Relief

Order to Remain in Force

This Order shall survive and remain in full force and effect after termination
of this Action.
IT IS SO ORDERED.

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Dated: July 19, 2016

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By:

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/s/
Honorable Jacqueline Chooljian
United States Magistrate Judge

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
CV16-00862-RGK(JCx)

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EXHIBIT A TO JOINT STIPULATED PROTECTIVE ORDER

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I hereby affirm that:
Information, including documents and things, designated as “Confidential
Material,” as defined in the Stipulated Protective Order entered in the above-

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captioned action (“Protective Order”), is being provided to me pursuant to the terms
and restrictions of the Protective Order.
I have been given a copy of and have read the Protective Order.

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I am familiar with the terms of the Protective Order and I agree to comply
with and to be bound by its terms.
I submit to the jurisdiction of this Court for enforcement of the Protective

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Order.
I agree not to use any Confidential Material disclosed to me pursuant to the
Protective Order except as allowed under the Protective Order and not to disclose

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any of this information to persons other than those specifically authorized by the

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Protective Order, without the express written consent of the party who designated

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the information as confidential or by order of the presiding judge. I also agree to

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notify any stenographic, clerical or technical personnel who are required to assist

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me of the terms of this Protective Order and of its binding effect on them and me.

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I understand that I am to retain all documents or materials designated as or

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containing Confidential Material in a secure manner, and that all such documents

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and materials are to remain in my personal custody until the completion of my
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ORDER RE JOINT STIPULATED PROTECTIVE
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assigned duties in this matter, whereupon I shall: (i) destroy or return to counsel
who provided me with such all originals of documents and materials produced and

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designated as Confidential Material and all identical copies, whether in whole or in

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part, of such documents; and (ii) destroy all copies thereof, as well as all notes,

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memoranda or other documents that summarize, discuss or quote materials

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produced and designated as Confidential Material, except that, with respect to word

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processing and database tapes and disks, I shall destroy or erase such tapes or disks

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to the extent practicable.
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___________________________________
Signature

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___________________________________
Name and Title

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ORDER RE JOINT STIPULATED PROTECTIVE
ORDER
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