Thomas McElroy et al v. Mikkel S Eriksen et al

Filing 45

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 42 (see attached) (jm)

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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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THOMAS DERRICK MCELROY, et
al.,
Plaintiffs,
vs.
MIKKEL S. ERIKSEN, etc., et al.,
Defendants.

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Case No. 2:16-cv-06445-CBM-AJWx
[PROPOSED] PROTECTIVE
ORDER

PROTECTIVE ORDER

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The parties to this action anticipate that the conduct of this matter may require

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disclosure

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development, commercial, financial or strategic information, within the scope of

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Federal Rule of Civil Procedure 26(c).

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discovery material, facilitate the prompt resolution of disputes over confidentiality,

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adequately protect material entitled to be kept confidential and ensure that protection

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is afforded only to material so entitled, and for good cause shown, pursuant to the

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Court’s authority under Federal Rule of Civil Procedure 26(c)(1)(G), and with the

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confidential

information,

including

trade

secrets,

research,

Accordingly, to expedite the flow of

consent of the parties,

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of

IT IS HEREBY ORDERED:
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DEFINITIONS

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1.1.

“Action” means this pending federal law suit.

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1.2.

“Challenging Party” means a Party or Non-Party that challenges the

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designation of information or items under this Order.

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1.3.

“CONFIDENTIAL”

Information

or

Items

means

information

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified

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above

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INFORMATION” is information which, if known by the party to whom it is

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disclosed, would be inherently harmful to the Designating Party’s business, privacy

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or other protected interests.

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in

1.4.

the

Good

Cause

Statement.

“HIGHLY

CONFIDENTIAL

“Counsel” means Outside Counsel of Record and House Counsel (as

well as their support staff).
1.5.

“Designating Party” means a Party or Non-Party that designates

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

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“CONFIDENTIAL.”

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1.6.

“Disclosure or Discovery Material” means all items or information,

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

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.

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1.7.

“Expert” means a person with specialized knowledge or experience in a

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

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serve as an expert witness in this Action.

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1.8.

“House Counsel” means attorneys who are employees of a party to this

Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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1.9.

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“Non-Party” means any natural person, partnership, corporation,

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

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1.10. “Outside Counsel of Record” means attorneys who are not employees

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of a party to this Action but are retained to represent or advise a party to this Action

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

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

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1.11. “Party” means any party to this Action, including all of its officers,

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

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support staffs).

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1.12. “Producing Party” means a Party or Non-Party that produces Disclosure
or Discovery Material in this Action.

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1.13. “Professional Vendors” means persons or entities that provide litigation

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

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

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and their employees and subcontractors.

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1.14. “Protected Material” means any Disclosure or Discovery Material that
is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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1.15. “Receiving Party” means a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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2.

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SCOPE OF THIS PROTECTIVE ORDER
2.1.

The protections conferred by this Order cover not only Protected

Material (as defined above), but also:

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(a)

any information copied or extracted from Protected Material;

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(b)

all copies, excerpts, summaries, or compilations of Protected

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Material; and

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(c)

any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.

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2.2.

Any use of Protected Material at trial shall be governed by the orders of

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the trial judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION OF THIS PROTECTIVE ORDER

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Even after final disposition of this litigation, the confidentiality obligations

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

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

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deemed to be the later of:

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(a)

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dismissal of all claims and defenses in this Action, with or

without prejudice; and

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(b)

final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this Action, including the

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

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

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

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

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qualifies under the appropriate standards. The Designating Party must designate for
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protection only those parts of material, documents, items, or oral or written

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

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or communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Order. Mass, indiscriminate, or routinized designations are

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prohibited. Designations that are shown to be clearly unjustified or that have been

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made for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on other

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parties) may expose the Designating Party to sanctions.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order or as otherwise stipulated or ordered, Disclosure or Discovery Material

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that qualifies for protection under this Order must be clearly so designated before the

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material is disclosed or produced.

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requires:

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(a)

Designation in conformity with this Order

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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY

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CONFIDENTIAL” (hereinafter “HIGHLY CONFIDENTIAL LEGEND”), to

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each page that contains protected material. A Party or Non-Party that makes

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original documents available for inspection need not designate them for

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protection until after the inspecting Party has indicated which documents it

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would like copied and produced.

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

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

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

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

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before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL legend” to each

During the inspection and before the

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page that contains Protected Material. If only a portion or portions of the

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

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

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in the margins).

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(b)

for testimony given in depositions, Parties and deponents may,

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within thirty (30) days after receiving a transcript of a deposition, designate

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pages of the transcript (and exhibits thereto) as Confidential or Highly

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Confidential to the extent the Party or deponent believes they contain material

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or information entitled to that protection. Confidential or Highly Confidential

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information within the deposition transcript may be designated only by

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sending a letter indicating the page and line numbers of the deposition

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transcript that the Party or deponent designates as Confidential and/or Highly

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Confidential to the party who took the deposition and to the court reporter.

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Audiovisual recordings, irrespective of the manner or medium of the

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recording, of depositions are deemed “Confidential” under this Stipulated

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Protective Order and shall not be made public or otherwise exhibited or

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disclosed except when, as and if played in open court or as may permitted by

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further order of the court. If the Party or deponent believes an audiovisual

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recording of a deposition contains material or information entitled to Highly

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Confidential protection, the Party or deponent may designate the portions

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Highly Confidential by sending a letter within thirty (30) days after receipt of

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the audiovisual recording, to the party who took the deposition and to the

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videographer indicating by time code or by reference to the deposition

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transcript the portion or portions of the audiovisual recording that the Party or

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deponent designates as Highly Confidential. Until the expiration of the 30-

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day period during which such designations may be made, both the transcript

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and any audiovisual recording of the deposition will be treated as subject to

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protection as Highly Confidential under this Stipulated Protective Order.
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(c)

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for information produced in some form other than documentary

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

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place on the exterior of the container or containers in which the information is

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stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If

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only a portion or portions of the information warrants protection, the

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Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2.

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3.

The Court’s Determination of the Propriety of a Challenged

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Designation. The burden of persuasion in any proceeding challenging a designation

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of confidentiality shall be on the Designating Party. Frivolous challenges, and those

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made for an improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions. Unless the

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection to

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

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the challenge.
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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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

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

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

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

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

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION). Protected Material must be stored and maintained by a Receiving

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

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persons authorized under this Order.
7.2.

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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information or item designated “CONFIDENTIAL” received by a Receiving Party

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may only be disclosed to:

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(a)

Parties of record in this action;

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(b)

Outside Counsel of Record in this Action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(c)

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

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

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this

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Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g)

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the author or recipient of a document containing the information

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or a custodian or other person who otherwise possessed or knew the

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information;
(h)

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during their depositions, witnesses, and attorneys for witnesses,

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in the Action to whom disclosure is reasonably necessary provided the witness

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sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

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otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material may be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Stipulated Protective

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

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

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Unless otherwise ordered by the court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL” only to those identified in Sections 7(b)-(g) and (j), above, and

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7(h) above to the extent counsel has a good faith belief that the witness currently has

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or would be expected to have knowledge of the contents of the document, or of its

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subject matter, and to no one else.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or

order to issue in the other litigation that some or all of the material covered by
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the subpoena or order is subject to this Protective Order. Such notification

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shall include a copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be

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

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

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

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this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before a

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determination by the court from which the subpoena or order issued, unless

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the Party has obtained the Designating Party’s permission. The Designating

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

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its confidential material and nothing in these provisions should be construed

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

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lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)

The terms of this Order are applicable to information produced

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by a Non-Party in this Action and designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL.” Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided

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by this Order. Nothing in these provisions should be construed as prohibiting

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a Non-Party from seeking additional protections.

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

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

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Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;
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(2)

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promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery

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request(s), and a reasonably specific description of the information

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requested; and

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(3)

make the information requested available for inspection by

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the Non-Party, if requested.

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(c)

If the Non-Party fails to seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the

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

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court of its Protected Material.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,
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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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

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

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

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

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

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parties may incorporate their agreement in the stipulated protective order submitted

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to the court.

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12.

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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.

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

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. If a Party's request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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

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

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

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

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summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving

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

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

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

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

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

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

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

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

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

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

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

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Section 4 (DURATION).

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14.

VIOLATION OF THIS PROTECTIVE ORDER

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

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

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sanctions.

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IT IS SO ORDERED.

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Dated: June 7, 2017

____________________________
Hon. Andrew J. Wistrich
UNITED STATES MAGISTRATE JUDGE

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Submitted by:
Peter J. Anderson, Esq., Cal. Bar No. 88891
E-Mail: [e-mail]
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: [phone]
Fax: [phone]
Attorney for Defendant
WB MUSIC CORP.

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________________________ [print or type full name], of

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______________________________________________ [print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for

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the Central District of California on [date] in the case of Thomas Dereck McElroy et

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al. v. Mikkel S. Eriksen et al., Case No. 2:16-cv-06445-CBM-AJWx. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order and

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I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint ___________________________ [print

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or type full name] of ____________________________________________ [print

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or type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement of

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this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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