VBConversions LLC v. CW Professional Services LLC et al

Filing 35

JOINT PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Miscellaneous Document 34 (sbu)

1 DONALD M. GINDY (SBN# 45228)
LAW OFFICES OF DONALD M. GINDY
2 1925 Century Park East, Suite 650
3 Los Angeles CA, 90067
Telephone: [phone]
4 E-Mail: [e-mail]
5 Attorney for Plaintiff/Counterdefendant,
VBCONVERSIONS LLC
6
7 JAMES E. DOROSHOW (SBN# 112920)
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

12

VBCONVERSIONS LLC, A California
Limited Liability Company

13

Plaintiff/Counterdefendant,

11

v.

14
15
16
17
18

Case No: 16-cv-01435-JAK-KS

[proposed]

JOINT STIPULATED
PROTECTIVE ORDER
CONCERNING TREATMENT OF
CONFIDENTIAL INFORMATION

CW PROFESSIONAL SERVICES,
LLC doing business as LOCHBRIDGE
LLC, a Michigan limited liability
company; SATYA GUTTULA,
individual; DOES 1-10, inclusive,

19

Complaint filed:

March 1, 2016

Defendants/Counterclaimants,

20
21 1.

A. PURPOSES AND LIMITATIONS

22

Discovery in this action is likely to involve production of confidential,

23 proprietary, or private information for which special protection from public
24 disclosure and from use for any purpose other than prosecuting this litigation may
25 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
26 enter the following Stipulated Protective Order. The parties acknowledge that this
27 Order does not confer blanket protections on all disclosures or responses to
28
1
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 discovery and that the protection it affords from public disclosure and use extends
2 only to the limited information or items that are entitled to confidential treatment
3 under the applicable legal principles. The parties further acknowledge, as set forth in
4 Section 12.3, below, that this Stipulated Protective Order does not entitle them it to
5 file confidential information under seal; Civil Local Rule 79-5 sets forth the
6 procedures that must be followed and the standards that will be applied when a party
7 seeks permission from the court to file material under seal.
8
9
10

B. GOOD CAUSE STATEMENT
This action is likely to involve trade secrets, customer and pricing lists and

11 other valuable research, development, commercial, financial, technical and/or
12 proprietary information for which special protection from public disclosure and
13 from use for any purpose other than prosecution of this action is warranted. Such
14 confidential and proprietary materials and information consist of, among other
15 things, confidential business or financial information, information regarding
16 confidential business practices, or other confidential research, development, or
17 commercial information (including information implicating privacy rights of third
18 parties), information otherwise generally unavailable to the public, or which may be
19 privileged or otherwise protected from disclosure under state or federal statutes,
20 court rules, case decisions, or common law. Accordingly, to expedite the flow of
21 information, to facilitate the prompt resolution of disputes over confidentiality of
22 discovery materials, to adequately protect information the parties are entitled to keep
23 confidential, to ensure that the parties are permitted reasonable necessary use of
24 such material in preparation for and in the conduct of trial, to address their handling
25 at the end of the litigation, and serve the ends of justice, a protective order for such
26 information is justified in this matter. It is the intent of the parties that information
27 will not be designated as confidential for tactical reasons and that nothing be so
28 designated without a good faith belief that it has been maintained in a confidential,
2
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 non-public manner, and there is good cause why it should not be part of the public
2 record of this case.
3
4 2.

DEFINITIONS

5

2.1 Action: consolidated and related actions. VBCONVERSION LLC,

6 Plaintiff and Cross-Defendant v. CW PROFESSIONAL SERVICES LLC dba
7 LOCHBRIDGE; SATYA GUTTULA, Defendants and Cross-Complainant (only
8 Lochbridge) Case No. 16-cv-01435 JAK-KS.
9

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

10 information or items under this Order.
11

2.3 “CONFIDENTIAL” Information or Items: information (regardless of how

12 it is generated, stored or maintained) or tangible things that qualify for protection
13 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
14 Cause Statement.
15

2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their

16 support staff).
17

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

18 items that it produces in disclosures or in responses to discovery as
19 “CONFIDENTIAL.”
20

2.6 Disclosure or Discovery Material: all items or information, regardless of

21 the medium or manner in which it is generated, stored, or maintained (including,
22 among other things, testimony, transcripts, and tangible things), that are produced or
23 generated in disclosures or responses to discovery in this matter.
24

2.7 Expert: a person with specialized knowledge or experience in a matter

25 pertinent to the litigation who has been retained by a Party or its counsel to serve as
26 an expert witness or as a consultant in this Action.
27

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

28 House Counsel does not include Outside Counsel of Record or any other outside
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1 counsel.
2.9 Non-Party: any natural person, partnership, corporation, association, or

2

3 other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party

4

5 to this Action but are retained to represent or advise a party to this Action and have
6 appeared in this Action on behalf of that party or are affiliated with a law firm which
7 has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

8

9 employees, consultants, retained experts, and Outside Counsel of Record (and their
10 support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

11

12 Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

13

14 services (e.g., photocopying, videotaping, translating, preparing exhibits or
15 demonstrations, and organizing, storing, or retrieving data in any form or medium)
16 and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

17

18 designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

19

20 from a Producing Party.
21
22 3.

SCOPE

23

The protections conferred by this Stipulation and Order cover not only

24 Protected Material (as defined above), but also (1) any information copied or
25 extracted from Protected Material; (2) all copies, excerpts, summaries, or
26 compilations of Protected Material; and (3) any testimony, conversations, or
27 presentations by Parties or their Counsel that might reveal Protected Material.
28

Any use of Protected Material at trial shall be governed by the orders of the
4
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 trial judge. This Order does not govern the use of Protected Material at trial.
2
3 4.

DURATION

4

Even after final disposition of this litigation, the confidentiality obligations

5 imposed by this Order shall remain in effect until a Designating Party agrees
6 otherwise in writing or a court order otherwise directs. Final disposition shall be
7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
8 or without prejudice; and (2) final judgment herein after the completion and
9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
10 including the time limits for filing any motions or applications for extension of time
11 pursuant to applicable law.
12
13 5.

DESIGNATING PROTECTED MATERIAL

14

5.1 Exercise of Restraint and Care in Designating Material for Protection.

15 Each Party or Non-Party that designates information or items for protection under
16 this Order must take care to limit any such designation to specific material that
17 qualifies under the appropriate standards. The Designating Party must designate for
18 protection only those parts of material, documents, items, or oral or written
19 communications that qualify so that other portions of the material, documents,
20 items, or communications for which protection is not warranted are not swept
21 unjustifiably within the ambit of this Order.
22

Mass, indiscriminate, or routinized designations are prohibited. Designations

23 that are shown to be clearly unjustified or that have been made for an improper
24 purpose (e.g., to unnecessarily encumber the case development process or to impose
25 unnecessary expenses and burdens on other parties) may expose the Designating
26 Party to sanctions.
27

If it comes to a Designating Party’s attention that information or items that it

28 designated for protection do not qualify for protection, that Designating Party must
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INFORMATION

1 promptly notify all other Parties that it is withdrawing the inapplicable designation.
2

5.2 Manner and Timing of Designations. Except as otherwise provided in this

3 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
4 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
5 under this Order must be clearly so designated before the material is disclosed or
6 produced.
7
8

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

9 documents, but excluding transcripts of depositions or other pretrial or trial
10 proceedings), that the Producing Party will affix at a minimum, the legend
11 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
12 contains protected material. If only a portion or portions of the material on a page
13 qualifies for protection, the Producing Party will also must clearly identify the
14 protected portion(s) (e.g., by making appropriate markings in the margins).
15

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

16 need not designate them for protection until after the inspecting Party has indicated
17 which documents it would like copied and produced. During the inspection and
18 before the designation, all of the material made available for inspection shall be
19 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
20 documents it wants copied and produced, the Producing Party must determine which
21 documents, or portions thereof, qualify for protection under this Order. Then, before
22 producing the specified documents, the Producing Party must affix the
23 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
24 portion or portions of the material on a page qualifies for protection, the Producing
25 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
26 markings in the margins).
27

(b) for testimony given in depositions that the Designating Party identify the

28 Disclosure or Discovery Material on the record, before the close of the deposition all
6
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 protected testimony.
(c) for information produced in some form other than documentary and for

2

3 any other tangible items, that the Producing Party affix in a prominent place on the
4 exterior of the container or containers in which the information is stored the legend
5 “CONFIDENTIAL.” If only a portion or portions of the information warrants
6 protection, the Producing Party, to the extent practicable, shall identify the protected
7 portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

8

9 failure to designate qualified information or items does not, standing alone, waive
10 the Designating Party’s right to secure protection under this Order for such material.
11 Upon timely correction of a designation, the Receiving Party must make reasonable
12 efforts to assure that the material is treated in accordance with the provisions of this
13 Order.
14
15 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

16

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

17 designation of confidentiality at any time that is consistent with the Court’s
18 Scheduling Order.
19

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

20 resolution process under Local Rule 37.1 et seq.
21

6.3 The burden of persuasion in any such challenge proceeding shall be on the

22 Designating Party. Frivolous challenges, and those made for an improper purpose
23 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
24 expose the Challenging Party to sanctions. Unless the Designating Party has waived
25 or withdrawn the confidentiality designation, all parties shall continue to afford the
26 material in question the level of protection to which it is entitled under the
27 Producing Party’s designation until the Court rules on the challenge.
28
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[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
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1
2

7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION).
9

Protected Material must be stored and maintained by a Receiving Party at a

10 location and in a secure manner that ensures that access is limited to the persons
11 authorized under this Order.
12

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

13 ordered by the court or permitted in writing by the Designating Party, a Receiving
14 Party may disclose any information or item designated “CONFIDENTIAL” only to:
15

(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

16 employees of said Outside Counsel of Record to whom it is reasonably necessary to
17 disclose the information for this Action;
18

(b) the officers, directors, and employees (including House Counsel) of the

19 Receiving Party to whom disclosure is reasonably necessary for this Action;
20

(c) Experts (as defined in this Order) of the Receiving Party to whom

21 disclosure is reasonably necessary for this Action and who have signed the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
23

(d) the court and its personnel;

24

(e) court reporters and their staff;

25

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

26 Vendors to whom disclosure is reasonably necessary for this Action and who have
27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
28

(g) the author or recipient of a document containing the information or a
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[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 custodian or other person who otherwise possessed or knew the information;
2

(h) during their depositions, witnesses ,and attorneys for witnesses, in the

3 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
4 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
5 not be permitted to keep any confidential information unless they sign the
6 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
7 agreed by the Designating Party or ordered by the court. Pages of transcribed
8 deposition testimony or exhibits to depositions that reveal Protected Material may
9 be separately bound by the court reporter and may not be disclosed to anyone except
10 as permitted under this Stipulated Protective Order; and
11

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

12 mutually agreed upon by any of the parties engaged in settlement discussions.
13
14

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

15 IN OTHER LITIGATION
16

If a Party is served with a subpoena or a court order issued in other litigation

17 that compels disclosure of any information or items designated in this Action as
18 “CONFIDENTIAL,” the Party must:
19

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

20 include a copy of the subpoena or court order;
21

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

22 issue in the other litigation that some or all of the material covered by the subpoena
23 or order is subject to this Protective Order. Such notification shall include a copy of
24 this Stipulated Protective Order; and
25

(c) cooperate with respect to all reasonable procedures sought to be pursued

26 by the Designating Party whose Protected Material may be affected.
27

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

28 the subpoena or court order shall not produce any information designated in this
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[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 action as “CONFIDENTIAL” before a determination by the court from which the
2 subpoena or order issued, unless the Party has obtained the Designating Part’s
3 permission. The Designating Party shall bear the burden and expense of seeking
4 protection in that court of its confidential material and nothing in these provisions
5 should be construed as authorizing or encouraging a Receiving Party in this Action
6 to disobey a lawful directive from another court.
7
8 9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

9 PRODUCED IN THIS LITIGATION
10

(a) The terms of this Order are applicable to information produced by a Non-

11 Party in this Action and designated as “CONFIDENTIAL.” Such information
12 produced by Non-Parties in connection with this litigation is protected by the
13 remedies and relief provided by this Order. Nothing in these provisions should be
14 construed as prohibiting a Non-Party from seeking additional protections.
15

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

16 produce a Non-Party’s confidential information in its possession, and the Party is
17 subject to an agreement with the Non-Party not to produce the Non-Party’s
18 confidential information, then the Party shall:
19

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

20 some or all of the information requested is subject to a confidentiality agreement
21 with a Non-Party;
22

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

23 Order in this Action, the relevant discovery request(s), and a reasonably specific
24 description of the information requested; and
25

(3) make the information requested available for inspection by the Non-Party,

26 if requested.
27

(c) If the Non-Party fails to seek a protective order from this court within

28 14 days of receiving the notice and accompanying information, the Receiving Party
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[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 may produce the Non-Party’s confidential information responsive to the discovery
2 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
3 not produce any information in its possession or control that is subject to the
4 confidentiality agreement with the Non-Party before a determination by the court.
5 Absent a court order to the contrary, the Non-Party shall bear the burden and
6 expense of seeking protection in this court of its Protected Material.
7
8 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

9

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

10 Protected Material to any person or in any circumstance not authorized under this
11 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
12 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
13 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
14 persons to whom unauthorized disclosures were made of all the terms of this Order,
15 and (d) request such person or persons to execute the “Acknowledgment and
16 Agreement to Be Bound” that is attached hereto as Exhibit A.
17
18 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

19 PROTECTED MATERIAL
20

When a Producing Party gives notice to Receiving Parties that certain

21 inadvertently produced material is subject to a claim of privilege or other protection,
22 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
23 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
24 may be established in an e-discovery order that provides for production without
25 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
26 as the parties reach an agreement on the effect of disclosure of a communication or
27 information covered by the attorney-client privilege or work product protection, the
28 parties may incorporate their agreement in the stipulated protective order submitted
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[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 to the court.
2
3 12.

MISCELLANEOUS

4

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

5 person to seek its modification by the Court in the future.
6

12.2 Right to Assert Other Objections. By stipulating agreeing to the entry of

7 this Protective Order no Party waives any right it otherwise would have to object to
8 disclosing or producing any information or item on any ground not addressed in this
9 Stipulated Protective Order. Similarly, no Party waives any right to object on any
10 ground to use in evidence of any of the material covered by this Protective Order.
11

12.3 Filing Protected Material. A Party that seeks to file under seal any

12 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
13 only be filed under seal pursuant to a court order authorizing the sealing of the
14 specific Protected Material at issue. If a Party's request to file Protected Material
15 under seal is denied by the court, then the Receiving Party may file the information
16 in the public record unless otherwise instructed by the court.
17
18 13. FINAL DISPOSITION
19

After the final disposition of this Action, as defined in paragraph 4, within 60

20 days of a written request by the Designating Party, each Receiving Party must return
21 all Protected Material to the Producing Party or destroy such material. As used in
22 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
23 summaries, and any other format reproducing or capturing any of the Protected
24 Material. Whether the Protected Material is returned or destroyed, the Receiving
25 Party must submit a written certification to the Producing Party (and, if not the same
26 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
27 (by category, where appropriate) all the Protected Material that was returned or
28 destroyed and (2) affirms that the Receiving Party has not retained any copies,
12
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER CONCERNING TREATMENT OF CONFIDENTIAL
INFORMATION

1 abstracts, compilations, summaries or any other format reproducing or capturing any
2 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
3 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
5 reports, attorney work product, and consultant and expert work product, even if such
6 materials contain Protected Material. Any such archival copies that contain or
7 constitute Protected Material remain subject to this Protective Order as set forth in
8 Section 4 (DURATION).
9
10

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

11 measures including, without limitation, contempt proceedings and/or monetary
12 sanctions.
13
14

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

15
16
17 DATED: September 7, 2016
18
19
20

_________________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
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EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
3

I,

_____________________[print

or

type

full

name]

of

4 ________________________[print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order
6 that was issued by the United States District Court for the Central District of
7 California on [date] in the case of VBConversions LLC v CW PROFESSIONAL
8 SERVICES, LLC doing business as LOCHBRIDGE LLC, et al. (CASE NO. 2:16-cv9 01435-JAK-KS [to be consolidated with 16-cv-04049])) I agree to comply with and
10 to be bound by all the terms of this Stipulated Protective Order and I understand and
11 acknowledge that failure to so comply could expose me to sanctions and punishment
12 in the nature of contempt. I solemnly promise that I will not disclose in any manner
13 any information or item that is subject to this Stipulated Protective Order to any
14 person or entity except in strict compliance with the provisions of this Order. I
15 further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint__________________________ [print or
19 type full name] of _____________________________________[print or type full
20 address and telephone number] as my California agent for service of process in
21 connection with this action or any proceedings related to enforcement of this
22 Stipulated Protective Order.
23
24 Date: ________________________
25 City and State where sworn and signed: _________________________
26 Printed name:_______________________________
27
28 Signature: __________________________________
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