Royal Printex, Inc. v. Walmart Stores, Inc. et al

Filing 20

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 19 . (See Order for Further Details) (kl)

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1 2 3 4 K. Tom Kohan (CA Bar No. 225420) KOHAN LAW FIRM 515 S. Figueroa Street, Suite 1200 Los Angeles, California 90071 Tel: 310-349-1111 5 Fax: 888-476-7010 6 Email: 7 Attorneys for Defendant 8 WALMART STORES, INC. 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 ROYAL PRINTEX, California Corporation, 14 Plaintiff, DISCOVERY MATTER 15 v. HON. JOHN E. McDERMOTT 16 WALMART STORES, INC., a PROTECTIVE ORDER California Corporation; and DOES 1 [Stipulation of Parties re Protective through 10, Order Concurrently Filed Herewith]] Defendants. 17 18 INC., a Case No.: 2:16-CV-03633 –TJH-JEMx 19 20 21 1. PURPOSES AND LIMITATIONS 22 Disclosure and discovery activity in this action are likely to involve 23 production of confidential, proprietary, or private information for which special 24 protection from public disclosure and from use for any purpose other than 25 prosecuting this matter would be warranted. Accordingly, the parties hereby 26 stipulate to and petition this Court to enter the following Stipulated Protective 27 Order. The parties acknowledge that this Order does not confer blanket protections 28 on all disclosures or responses to discovery and that the protection it affords 1 PROTECTIVE ORDER 1 extends only to the limited information or items that are entitled under the 2 applicable legal principles to treatment as confidential. The parties have agreed 3 that the terms of this Protective Order shall also apply to any future voluntary 4 disclosures of confidential, proprietary, or private information. The parties reserve 5 their rights to object to or withhold any information, including confidential, 6 proprietary, or private information, on any other applicable grounds permitted by 7 law, including third-party rights and relevancy. 8 9 2. DEFINITIONS 2.1 10 Party: any party to this action, including all of its officers, directors, 11 employees, consultants, retained experts, and outside counsel (and their support 12 staff). 13 2.2 Disclosure or Discovery Material: all items or information, regardless 14 of the medium or manner generated, stored, or maintained (including, among other 15 things, testimony, transcripts, or tangible things), that are produced or generated in 16 disclosures or responses to discovery in this matter. 17 2.3 “Confidential” Information or Items: information (regardless of how 18 generated, stored, or maintained) or tangible things that qualify for protection 19 under standards developed under Fed. R. Civ. P. 26(c). 20 21 22 2.4 “Attorneys’ Eyes Only”: Discovery Material or such portion of such material as consists of: a) any commercially sensitive and/or confidential business or financial 23 information (including without limitation confidential nonpublic contracts, 24 profitability reports or estimates, sales reports, and sales margins) which could 25 reasonably create a competitive disadvantage if disclosed to the parties in this 26 action; 27 28 2 PROTECTIVE ORDER 1 b) any business or financial information that is confidential, proprietary, or 2 commercially sensitive to third parties who have had business dealings with parties 3 to this action; or 4 c) any other category of material or information hereinafter given 5 Confidential status by the Court, to the extent said material could reasonably create 6 a competitive disadvantage if disclosed to the parties in this action. 7 8 9 10 11 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.7 Designating Party: a Party or non-party that designates information or 12 items that it produces in disclosures or in responses to discovery as 13 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 14 15 16 2.8 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 2.9 Expert: a person with specialized knowledge or experience in a 17 matter pertinent to the litigation who has been retained by a Party or its counsel to 18 serve as an expert witness or as a consultant in this action. This definition includes 19 a professional jury or trial consultant retained in connection with this litigation. 20 The expert witness or consultant may not be a past or a current employee of the 21 Party (including any affiliates or related entities) adverse to the Party engaging the 22 expert witness or consultant, or someone who at the time of retention is anticipated 23 to become an employee of the Party (including any affiliates or related entities) 24 adverse to the Party engaging the expert witness or consultant. Moreover, the 25 expert witness or consultant may not be a current employee or anticipated to 26 become an employee of any entity who is a competitor of the Party adverse to the 27 Party engaging the expert witness or consultant. 28 3 PROTECTIVE ORDER 1 2.10 Professional Vendors: persons or entities that provide litigation 2 support services (e.g., photocopying; videotaping; translating; preparing exhibits or 3 demonstrations; organizing, storing, or retrieving data in any form or medium; etc.) 4 and their employees and subcontractors. 5 3. SCOPE 6 The protections conferred by this Stipulation and Order cover not only 7 Protected Material (as defined above), but also any information copied or extracted 8 therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus 9 testimony, conversations, or presentations by parties or counsel to or in litigation 10 or in other settings that might reveal Protected Material. 11 12 4. DURATION Even after the termination of this action, the confidentiality obligations 13 14 imposed by this Order shall remain in effect until a Designating Party agrees 15 otherwise in writing or a court order otherwise directs. 16 17 18 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 19 Each Party or non-party that designates information or items for protection under 20 this Order must take care to limit any such designation to specific material that 21 qualifies under the appropriate standards. A Designating Party must take care to 22 designate for protection only those parts of material, documents, items, or oral or 23 written communications that qualify – so that other portions of the material, 24 documents, items, or communications for which protection is not warranted are not 25 swept unjustifiably within the ambit of this Order. 26 Mass, indiscriminate, or routinized designations are prohibited. Designations 27 that are shown to be clearly unjustified, or that have been made for an improper 28 purpose (e.g., to unnecessarily encumber or retard the case development process, 4 PROTECTIVE ORDER 1 or to impose unnecessary expenses and burdens on other parties), expose the 2 Designating Party to sanctions. 3 If it comes to a Party’s or a non-party’s attention that information or items 4 that it designated for protection do not qualify for protection at all, or do not 5 qualify for the level of protection initially asserted, that Party or non-party must 6 promptly notify all other parties that it is withdrawing the mistaken designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in 8 this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise 9 stipulated or ordered, material that qualifies for protection under this Order must be 10 clearly so designated before the material is disclosed or produced. 11 Designation in conformity with this Order requires: 12 (a) for information in documentary form (apart from transcripts of 13 depositions or other pretrial or trial proceedings), that the Producing Party affix the 14 legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” at the top or 15 bottom of each page that contains protected material. 16 A Party or non-party that makes originals or copies of documents or 17 materials available for inspection need not designate them for protection until after 18 the inspecting Party has indicated which material it intends to copy. During the 19 inspection and before the designation, all of the material made available for 20 inspection shall be deemed “ATTORNEYS’ EYES ONLY.” After the inspecting 21 Party has identified the documents it wants copied and produced, the Producing 22 Party must designate, either in writing or on the record (at a deposition), which 23 documents, or portions thereof, qualify for protection under this Order. Then the 24 Receiving Party must affix the “CONFIDENTIAL” or “ATTORNEYS’ EYES 25 ONLY” legend at the top of each copied page that contains Protected Material. If 26 only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making 28 appropriate markings in the margins) and must specify, for each portion, the level 5 PROTECTIVE ORDER 1 of protection being asserted (either “CONFIDENTIAL” or “ATTORNEYS’ EYES 2 ONLY”). 3 (b) for testimony given in deposition or in other pretrial or trial 4 proceedings, that the Party or non-party offering or sponsoring the testimony 5 identify on the record, before the close of the deposition, hearing, or other 6 proceeding, all protected testimony, and further specify any portions of the 7 testimony that qualify as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 8 When it is impractical to identify separately each portion of testimony that is 9 entitled to protection, and when it appears that substantial portions of the testimony 10 may qualify for protection, the Party or non-party that sponsors, offers, or gives the 11 testimony may invoke on the record (before the deposition or proceeding is 12 concluded) a right to have up to 20 days to identify the specific portions of the 13 testimony as to which protection is sought and to specify the level of protection 14 being asserted (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”). Only 15 those portions of the testimony that are appropriately designated for protection 16 within the 20 days shall be covered by the provisions of this Stipulated Protective 17 Order. 18 Transcript pages containing Protected Material must be separately bound by the 19 court reporter, who must affix to the top of each such page the legend 20 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” as instructed by the Party 21 or non-party offering or sponsoring the witness or presenting the testimony. 22 (c) for information produced in some form other than documentary, and 23 for any other tangible items, that the Producing Party affix in a prominent place on 24 the exterior of the container or containers in which the information or item is 25 stored the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If only 26 portions of the information or item warrant protection, the Producing Party, to the 27 extent practicable, shall identify the protected portions, specifying whether they 28 qualify as “CONFIDENTIAL” or as “ATTORNEYS’ EYES 6 PROTECTIVE ORDER 1 ONLY.” 5.3 2 Inadvertent Failures to Designate. If timely corrected, an inadvertent 3 failure to designate qualified information or items as “CONFIDENTIAL” or 4 “ATTORNEYS’ EYES ONLY” does not, standing alone, waive the Designating 5 Party’s right to secure protection under this Order for such material. If material is 6 appropriately designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES 7 ONLY” after the material was initially produced, the Receiving Party, on timely 8 notification of the designation, must make reasonable efforts to assure that the 9 material is treated in accordance with the provisions of this Order. 10 11 12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating 13 Party’s confidentiality designation is necessary to avoid foreseeable substantial 14 unfairness, unnecessary economic burdens, or a later significant disruption or delay 15 of the litigation, a Party does not waive its right to challenge a confidentiality 16 designation by electing not to mount a challenge promptly after the original 17 designation is disclosed. 18 6.2 Meet and Confer. A Party that elects to initiate a challenge to a 19 Designating Party’s confidentiality designation must do so in good faith and must 20 begin the process by conferring with counsel for the Designating Party in writing. 21 In conferring, the challenging Party must explain the basis for its belief that the 22 confidentiality designation was not proper and must give the Designating Party an 23 opportunity to review the designated material, to reconsider the circumstances, 24 and, if no change in designation is offered, to explain the basis for the chosen 25 designation. A challenging Party may proceed to the next stage of the challenge 26 process only if it has engaged in this meet-and-confer process first. 27 6.3 Court Intervention. A Party that elects to press a challenge to a 28 7 PROTECTIVE ORDER 1 confidentiality designation after considering the justification offered by the 2 Designating Party may file and serve a motion that identifies the challenged 3 material and sets forth in detail the basis for the challenge. Each such motion must 4 be accompanied by a competent declaration that affirms that the movant has 5 complied with the meet-and-confer requirements imposed in the preceding 6 paragraph and that sets forth with specificity the justification for the confidentiality 7 designation that was given by the Designating Party in the meet-and-confer 8 dialogue. The parties agree that a confidentiality designation shall not create a 9 presumption in favor of such confidentiality designation, and that the Court shall 10 decide the issue as such. 11 Until the Court rules on the challenge, all parties shall continue to afford the 12 material in question the level of protection to which it is entitled under the 13 Producing Party’s designation. 14 15 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that 17 is disclosed or produced by another Party or by a non-party in connection with this 18 case only for prosecuting, defending, or attempting to settle this litigation. Such 19 Protected Material may be disclosed only to the categories of persons and under 20 the conditions described in this Order. When the litigation has been terminated, a 21 Receiving Party must comply with the provisions of section 11, below (FINAL 22 DISPOSITION). 23 Protected Material must be stored and maintained by a Receiving Party at a 24 location and in a secure manner that ensures that access is limited to the persons 25 authorized under this Order. 26 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 27 otherwise ordered by the Court or permitted in writing by the Designating Party, a 28 Receiving Party may disclose any information or item designated 8 PROTECTIVE ORDER 1 2 “CONFIDENTIAL” only to: (a) the Receiving Party’s outside counsel, as well as employees of said 3 outside counsel to whom it is reasonably necessary to disclose the information for 4 this litigation; 5 (b) Board members, officers and directors of the Receiving Party; 6 (c) Other employees of the Receiving Party to whom disclosure is 7 reasonably necessary for this litigation and who are bound by internal 8 confidentiality obligations as part of their employment or who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (d) Experts (as defined in this Order) of the Receiving Party to whom 11 disclosure is reasonably necessary for this litigation and who have signed the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 13 (e) the Court personnel assigned to this litigation; 14 (f) court reporters, their staffs, and professional vendors to whom 15 disclosure is reasonably necessary for this litigation and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (g) during their depositions, witnesses in the action to whom disclosure is 18 reasonably necessary and who have signed the “Acknowledgment and Agreement 19 to Be Bound” (Exhibit A). Pages of transcribed deposition testimony or exhibits to 20 depositions that reveal Protected Material must be separately bound by the court 21 reporter and may not be disclosed to anyone except as permitted under this 22 Stipulated Protective Order; and 23 24 25 (h) the author and recipients of the document or the original source of the information. 7.3 Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items. 26 Unless otherwise ordered by the Court or permitted in writing by the Designating 27 Party, a Receiving Party may disclose any information or item designated 28 “ATTORNEYS’ EYES ONLY” only to: 9 PROTECTIVE ORDER (a) 1 the Receiving Party’s outside counsel, as well as employees of said 2 outside counsel to whom it is reasonably necessary to disclose the information for 3 this litigation; (b) 4 Experts (as defined in this Order) of the Receiving Party to whom 5 disclosure is reasonably necessary for this litigation and who have signed the 6 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (c) the Court personnel assigned to this litigation; 8 (d) court reporters, their staffs, and professional vendors to whom 9 10 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and (e) 11 12 the author and recipients of the document or the original source of the information. 7.4 13 Nothing in this Order shall be read to prohibit the use of otherwise 14 Protected Material to prosecute claims against additional potential defendants 15 identified in said materials. 16 17 8. 18 IN OTHER LITIGATION 19 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Receiving Party is served with a subpoena or an order issued in other 20 litigation that would compel disclosure of any Discovery Material, the Receiving 21 Party must so notify the Designating Party, in writing immediately and in no event 22 more than five business days after receiving the subpoena or order. Such 23 notification must include a copy of the subpoena or court order. The Receiving 24 Party also must immediately inform in writing the Party who caused the subpoena 25 or order to issue in the other litigation that some or all of the material covered by 26 the subpoena or order is the subject of this Protective Order. In addition, the 27 Receiving Party must deliver a copy of this Stipulated Protective Order promptly 28 to the Party in the other action that caused the subpoena or order to issue. 10 PROTECTIVE ORDER 1 The purpose of imposing these duties is to alert the interested parties to the 2 existence of this Protective Order and to afford the Designating Party in this case 3 an opportunity to try to protect its confidentiality interests in the court from which 4 the subpoena or order issued. The Designating Party shall bear the burdens and the 5 expenses of seeking protection in that court of its confidential material – and 6 nothing in these provisions should be construed as authorizing or encouraging a 7 Receiving Party in this action to disobey a lawful directive from another court. 8 9 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 10 If a Receiving Party learns that, by inadvertence or otherwise, it has 11 disclosed Protected Material to any person or in any circumstance not authorized 12 under this Stipulated Protective Order, the Receiving Party must immediately (a) 13 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 14 best efforts to retrieve all copies of the Protected Material, (c) inform the person or 15 persons to whom unauthorized disclosures were made of all the terms of this 16 Order, and (d) request such person or persons to execute the “Acknowledgment 17 and Agreement to Be Bound” that is attached hereto as Exhibit A. 18 19 10. FILING PROTECTED MATERIAL 20 Without written permission from the Designating Party, or a court order secured 21 after appropriate notice to all interested persons and after following the procedures 22 provided for in Local Rule 79-5.1, a Party may not file in the public record in this 23 action any Protected Material. 24 25 11. FINAL DISPOSITION 26 Unless otherwise ordered or agreed to in writing by the Producing Party, within 60 27 days after the final termination of this action, each Receiving Party must either 28 return all Protected Material to the Producing Party or certify the destruction of 11 PROTECTIVE ORDER 1 said material. As used in this subdivision, “all Protected Material” includes all 2 copies, abstracts, compilations, summaries or any other form of reproducing or 3 capturing any of the Protected Material. Whether the Protected Material is returned 4 or destroyed, the Receiving Party must submit a written certification to the 5 Producing Party (and, if not the same person or entity, to the Designating Party) by 6 the 60-day deadline that identifies (by category, where appropriate) all the 7 Protected Material that was returned or destroyed and that affirms that the 8 Receiving Party has not retained any copies, abstracts, compilations, summaries or 9 other forms of reproducing or capturing any of the Protected Material. 10 Notwithstanding this provision, counsel are entitled to retain an archival copy of all 11 pleadings, motion papers, transcripts, legal memoranda, correspondence or 12 attorney work product, even if such materials contain Protected Material. Any such 13 archival copies that contain or constitute Protected Material remain subject to this 14 Protective Order as set forth in Section 4 (DURATION), above. 15 16 17 18 19 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 20 Protective Order no Party waives any right it otherwise would have to object to 21 disclosing or producing any information or item on any ground not addressed in 22 this Stipulated Protective Order. Similarly, no Party waives any right to object on 23 any ground to use in evidence of any of the material covered by this Protective 24 Order. 25 12.3 Inadvertent Production of Privileged Documents. If a Party, through 26 inadvertence, produces any document or information that it believes is immune 27 from discovery pursuant to an attorney-client privilege, the work product privilege, 28 or any other privilege, such production shall not be deemed a waiver of any 12 PROTECTIVE ORDER 1 privilege, and the Producing Party may give written notice to the Receiving Party 2 that the document or information produced is deemed privileged and that return of 3 the document or information is requested. Upon receipt of such notice, the 4 Receiving Party shall immediately gather the original and all copies of the 5 document or information of which the Receiving Party is aware, in addition to any 6 abstracts, summaries, or descriptions thereof, and shall immediately return the 7 original and all such copies to the Producing Party. Nothing stated herein shall 8 preclude a Party from challenging an assertion by the other Party of privilege or 9 confidentiality. 10 IT IS SO ORDERED. 11 12 Dated: December 28, 2016 ________________________ 13 HON. JOHN E. McDERMOTT 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 PROTECTIVE ORDER EXHIBIT A 1 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ________________________________________________ [print full name], of 4 _________________________________________________ [print full address], 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California in the case of Royal Printex , Inc. v. Walmart 8 Stores, Inc., et al., USDC Case No. 16-CV-03633-TJH-JEMx, I agree to comply 9 with and to be bound by all of the terms of this Stipulated Protective Order and I 10 understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the 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. 19 I hereby appoint _____________________________________ [print full name] of 20 __________________________________________________ [print full address 21 and telephone number] as my California agent for service of process in connection 22 with this action or any proceedings related to enforcement of this Stipulated 23 Protective Order. 24 Date: _________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: ______________________________ 27 Signature: _________________________________ 28 14 PROTECTIVE ORDER

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