William L McCarthy v. Charter Communications of California, LLC et al

Filing 34

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re REQUEST for Protective Order for Confidential Documents 33 . See order for details. (hr)

1
2
3
4
5
6
7
8
9
10
11
12
13

THOMPSON COBURN LLP
HELEN B. KIM, CSB 138209
[e-mail]
ROWENA G. SANTOS, CSB 210185
[e-mail]
2029 Century Park East, 19th Floor
Los Angeles, California 90067
Tel: [phone] / Fax: [phone]
Attorneys for Defendant
CHARTER COMMUNICATIONS
OF CALIFORNIA, LLC
LINA M. MICHAEL, SBN: 237842
[e-mail]
LISA DUBOWSKI, SBN: 237003
[e-mail]
MICHAEL & ASSOCIATES, PC
555 St. Charles Drive, Suite 204
Thousand Oaks, CA 91360
Tel: 805.379.505/ Fax: [phone]
Attorneys for Plaintiff
WILLIAM L. MCCARTHY

14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16
17

WILLIAM L. MCCARTHY,
Plaintiff,

18
19
20
21

v.
CHARTER COMMUNICATIONS
OF CALIFORNIA, LLC,

Case No. CV 16-6059-JFW (JCx)
STIPULATION AND PROTECTIVE
ORDER

Defendant.

22
23

IT IS HEREBY STIPULATED by and between the parties. Plaintiff William

24

L. McCarthy and Defendant Charter Communications of California, LLC

25

(collectively “Parties”), by and through their respective counsel of record, that in

26

order to facilitate the exchange of information and documents which may be subject

27

to confidentiality limitations on disclosure due to federal laws, state laws, and

28

privacy rights, the Parties stipulate as follows:

1

1.

A. PURPOSES AND LIMITATIONS

2

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

3

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

4

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

5

prosecuting this litigation may be warranted, this Court enters the following

6

Protective Order. This Order does not confer blanket protections on all disclosures

7

or responses to discovery. The protection it affords from public disclosure and use

8

extends only to the limited information or items that are entitled to confidential

9

treatment under the applicable legal principles. Further, as set forth in Section 12.3,

10

below, this Protective Order does not entitle the parties to file confidential

11

information under seal. Rather, when the parties seek permission from the court to

12

file material under seal, the parties must comply with Civil Local Rule 79-5 and

13

with any pertinent orders of the assigned District Judge and Magistrate Judge.

14

B. GOOD CAUSE STATEMENT

15

In light of the nature of the claims and allegations in this case and the parties’

16

representations that discovery in this case will involve the production of confidential

17

records, and in order to expedite the flow of information, to facilitate the prompt

18

resolution of disputes over confidentiality of discovery materials, to adequately

19

protect information the parties are entitled to keep confidential, to ensure that the

20

parties are permitted reasonable necessary uses of such material in connection with

21

this action, to address their handling of such material at the end of the litigation, and

22

to serve the ends of justice, a protective order for such information is justified in this

23

matter. The parties shall not designate any information/documents as confidential

24

without a good faith belief that such information/documents have been maintained

25

in a confidential, non-public manner, and that there is good cause or a compelling

26

reason why it should not be part of the public record of this case.

27
28
2

1
2
3
4
5
6

2.

DEFINITIONS
2.1

Action: The instant action: William McCarthy v. Charter

Communications of California, LLC, Case No. CV 16-6059-JFW (JCx).
2.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

7

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

8

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

9

the Good Cause Statement.

10
11
12

2.4

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

their support staff).
2.5

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

13

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

14

“CONFIDENTIAL.”

15

2.6

Disclosure or Discovery Material: all items or information, regardless

16

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

17

among other things, testimony, transcripts, and tangible things), that are produced or

18

generated in disclosures or responses to discovery in this matter.

19

2.7

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

20

pertinent to the litigation who has been retained by a Party or its counsel to serve as

21

an expert witness or as a consultant in this Action.

22

2.8

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

23

House Counsel does not include Outside Counsel of Record or any other outside

24

counsel.

25
26

2.9

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

27

2.10 Outside Counsel of Record: attorneys who are not employees of a

28

party to this Action but are retained to represent or advise a party to this Action and
3

1

have appeared in this Action on behalf of that party or are affiliated with a law firm

2

which has appeared on behalf of that party, and includes support staff.

3

2.11 Party: any party to this Action, including all of its officers, directors,

4

employees, consultants, retained experts, and Outside Counsel of Record (and their

5

support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

6
7

Discovery Material in this Action.
2.13 Professional Vendors:

8

persons or entities that provide litigation

9

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

10

demonstrations, and organizing, storing, or retrieving data in any form or medium)

11

and their employees and subcontractors.

12

2.14 Protected Material:

13

any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.15 Receiving Party:

14
15

Material from a Producing Party.

16

3.

a Party that receives Disclosure or Discovery

SCOPE

17

The protections conferred by this Order cover not only Protected Material (as

18

defined above), but also (1) any information copied or extracted from Protected

19

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

20

and (3) any deposition testimony, conversations, or presentations by Parties or their

21

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

22

trial.

23

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

24

governed by the orders of the presiding judge. This Order does not govern the use

25

of Protected Material during a court hearing or at trial.

26

4.

DURATION

27

Even after final disposition of this litigation, the confidentiality obligations

28

imposed by this Order shall remain in effect until a Designating Party agrees
4

1

otherwise in writing or a court order otherwise directs. Final disposition shall be

2

deemed to be the later of (1) dismissal of all claims and defenses in this Action, with

3

or without prejudice; and (2) final judgment herein after the completion and

4

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

5

including the time limits for filing any motions or applications for extension of time

6

pursuant to applicable law.

7

5.

8

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

9

Each Party or Non-Party that designates information or items for protection under

10

this Order must take care to limit any such designation to specific material that

11

qualifies under the appropriate standards. The Designating Party must designate for

12

protection only those parts of material, documents, items, or oral or written

13

communications that qualify so that other portions of the material, documents,

14

items, or communications for which protection is not warranted are not swept

15

unjustifiably within the ambit of this Order.

16

Mass, indiscriminate, or routinized designations are prohibited. Designations

17

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

18

purpose (e.g., to unnecessarily encumber the case development process or to impose

19

unnecessary expenses and burdens on other parties) may expose the Designating

20

Party to sanctions.

21

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

22

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

23

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

24

5.2

Manner and Timing of Designations. Except as otherwise provided in

25

this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise

26

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

27

under this Order must be clearly so designated before the material is disclosed or

28

produced.
5

1

Designation in conformity with this Order requires:
(a)

2

for information in documentary form (e.g., paper or electronic

3

documents, but excluding transcripts of depositions), that the Producing Party affix

4

at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

5

legend”), to each page that contains protected material. If only a portion or portions

6

of the material on a page qualifies for protection, the Producing Party also must

7

clearly identify the protected portion(s) (e.g., by making appropriate markings in the

8

margins).

9

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

10

need not designate them for protection until after the inspecting Party has indicated

11

which documents it would like copied and produced. During the inspection and

12

before the designation, all of the material made available for inspection shall be

13

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

14

documents it wants copied and produced, the Producing Party must determine which

15

documents, or portions thereof, qualify for protection under this Order. Then, before

16

producing the specified documents, the Producing Party must affix the

17

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

18

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

19

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

20

markings in the margins).

21
22

(b) for testimony given in depositions that the Designating Party identifies
on the record, before the close of the deposition as protected testimony.

23

(c) for information produced in some form other than documentary and

24

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

25

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

26

legend “CONFIDENTIAL.” If only a portion or portions of the information

27

warrants protection, the Producing Party, to the extent practicable, shall identify the

28

protected portion(s).
6

5.3

1

Inadvertent Failures to Designate. If timely corrected, an inadvertent

2

failure to designate qualified information or items does not, standing alone, waive

3

the Designating Party’s right to secure protection under this Order for such material.

4

Upon timely correction of a designation, the Receiving Party must make reasonable

5

efforts to assure that the material is treated in accordance with the provisions of this

6

Order.

7

6.

6.1

8
9
10

Timing of Challenges.

Any Party or Non-Party may challenge a

designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2

11
12

CHALLENGING CONFIDENTIALITY DESIGNATIONS

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.
6.3

13

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

14

the Designating Party. Frivolous challenges, and those made for an improper

15

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

16

parties) may expose the Challenging Party to sanctions. Unless the Designating

17

Party has waived or withdrawn the confidentiality designation, all parties shall

18

continue to afford the material in question the level of protection to which it is

19

entitled under the Producing Party’s designation until the Court rules on the

20

challenge.

21

7.

22

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

23

disclosed or produced by another Party or by a Non-Party in connection with this

24

Action only for prosecuting, defending, or attempting to settle this Action. Such

25

Protected Material may be disclosed only to the categories of persons and under the

26

conditions described in this Order. When the Action has been terminated, a

27

Receiving Party must comply with the provisions of Section 13 below.

28
7

1

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

2

location and in a secure manner that ensures that access is limited to the persons

3

authorized under this Order.

4

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

5

otherwise ordered by the court or permitted in writing by the Designating Party, a

6

Receiving

7

“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

8

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

9

well as employees of said Outside Counsel of Record to whom it is reasonably

10
11
12

necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;

13

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

14

disclosure is reasonably necessary for this Action and who have signed the

15

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

16

(d) the court and its personnel;

17

(e) court reporters and their staff;

18

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

19

Vendors to whom disclosure is reasonably necessary for this Action and who have

20

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

21
22

(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;

23

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

24

Action to whom disclosure is reasonably necessary provided: (1) the deposing party

25

requests that the witness sign the “Acknowledgment and Agreement to Be Bound”

26

form attached as Exhibit A hereto; and (2) they will not be permitted to keep any

27

confidential information unless they sign the “Acknowledgment and Agreement to

28

Be Bound” attached as Exhibit A, unless otherwise agreed by the Designating Party
8

1

or ordered by the court. Pages of transcribed deposition testimony or exhibits to

2

depositions that reveal Protected Material may be separately bound by the court

3

reporter and may not be disclosed to anyone except as permitted under this

4

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

5
6

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

7

8.

8

IN OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

9

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

10

that compels disclosure of any information or items designated in this Action as

11

“CONFIDENTIAL,” that Party must:

12
13

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order unless prohibited by law;

14

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

15

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

16

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

17

a copy of this Protective Order; and

18
19

(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

20

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

21

the subpoena or court order shall not produce any information designated in this

22

action as “CONFIDENTIAL” before a determination by the court from which the

23

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

24

permission, or unless otherwise required by the law or court order. The Designating

25

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

26

confidential material and nothing in these provisions should be construed as

27

authorizing or encouraging a Receiving Party in this Action to disobey a lawful

28

directive from another court.
9

1

9.

A

NON-PARTY’S

PROTECTED

2

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION

3

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

4

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

5

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

6

remedies and relief provided by this Order. Nothing in these provisions should be

7

construed as prohibiting a Non-Party from seeking additional protections.

8

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

9

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

10

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

11

confidential information, then the Party shall:

12

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

13

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

14

agreement with a Non-Party;

15

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

16

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

17

description of the information requested; and

18
19

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

20

(c) If a Non-Party represented by counsel fails to commence the process

21

called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the

22

notice and accompanying information or fails contemporaneously to notify the

23

Receiving Party that it has done so, the Receiving Party may produce the Non-

24

Party’s confidential information responsive to the discovery request.

25

unrepresented Non-Party fails to seek a protective order from this court within 14

26

days of receiving the notice and accompanying information, the Receiving Party

27

may produce the Non-Party’s confidential information responsive to the discovery

28

request. If the Non-Party timely seeks a protective order, the Receiving Party shall
10

If an

1

not produce any information in its possession or control that is subject to the

2

confidentiality agreement with the Non-Party before a determination by the court

3

unless otherwise required by the law or court order. Absent a court order to the

4

contrary, the Non-Party shall bear the burden and expense of seeking protection in

5

this court of its Protected Material.

6

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

7

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

8

Protected Material to any person or in any circumstance not authorized under this

9

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

10

Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

11

all unauthorized copies of the Protected Material, (c) inform the person or persons to

12

whom unauthorized disclosures were made of all the terms of this Order, and (d)

13

request such person or persons to execute the “Acknowledgment and Agreement to

14

Be Bound” that is attached hereto as Exhibit A.

15

11.

16

PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

17

When a Producing Party gives notice to Receiving Parties that certain

18

inadvertently produced material is subject to a claim of privilege or other protection,

19

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

20

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

21

may be established in an e-discovery order that provides for production without

22

prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar

23

as the parties reach an agreement on the effect of disclosure of a communication or

24

information covered by the attorney-client privilege or work product protection, the

25

parties may incorporate their agreement into this Protective Order.

26

12.

27
28

MISCELLANEOUS
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.
11

1

12.2 Right to Assert Other Objections. No Party waives any right it

2

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

3

on any ground not addressed in this Protective Order. Similarly, no Party waives

4

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

5

by this Protective Order.

6

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

7

Protected Material must comply with Civil Local Rule 79-5 and with any pertinent

8

orders of the assigned District Judge and Magistrate Judge. If a Party's request to

9

file Protected Material under seal is denied by the court, then the Receiving Party

10

may file the information in the public record unless otherwise instructed by the

11

court.

12

13.

FINAL DISPOSITION

13

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

14

days of a written request by the Designating Party, each Receiving Party must return

15

all Protected Material to the Producing Party or destroy such material. As used in

16

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

17

summaries, and any other format reproducing or capturing any of the Protected

18

Material. Whether the Protected Material is returned or destroyed, the Receiving

19

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

20

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

21

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

22

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

23

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

24

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

25

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

26

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

27

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

28

materials contain Protected Material. Any such archival copies that contain or
12

1

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

2

Section 4.

3

14.

4

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

5

sanctions.

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

6
7

DATED: February 8, 2017

THOMPSON COBURN LLP

8
9

By:

10
11
12

/s/
HELEN B. KIM
ROWENA SANTOS
Attorneys for Defendant
CHARTER COMMUNICATIONS
OF CALIFORNIA, LLC

13
14

DATED: February 8, 2017

MICHAEL & ASSOCIATES, PC

15
16

By:

17
18
19
20

/s/
Lina M. Michael
Lisa Dubowski
Attorneys for Plaintiff,
WILLIAM L. McCARTHY.

21
22

IT IS SO ORDERED.

23
24
25
26

DATED: February 8, 2017
___________/s/______________
Honorable Jacqueline Chooljian
United States Magistrate Judge

27
28
13

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

I,

_____________________________

[print

or

type

full

name],

of

5

_________________ [print or type full address], declare under penalty of perjury

6

that I have read in its entirety and understand the Protective Order that was issued

7

by the United States District Court for the Central District of California on February

8

8, 2017 in the case of William McCarthy v. Charter Communications of California,

9

LLC, Case No. CV 16-6059-JFW (JCx). I agree to comply with and to be bound by

10

all the terms of this Protective Order and I understand and acknowledge that failure

11

to so comply could expose me to sanctions and punishment in the nature of

12

contempt. I solemnly promise that I will not disclose in any manner any information

13

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

14

compliance with the provisions of this Order.

15

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

16

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

17

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

18

this action. I hereby appoint __________________________ [print or type full

19

name] of _______________________________________ [print or type full address

20

and telephone number] as my California agent for service of process in connection

21

with this action or any proceedings related to enforcement of this Protective Order.

22

Date: ______________________________________

23

City and State where sworn and signed: _________________________________

24
25

Printed name: _______________________________

26
27

Signature: __________________________________

28
14