Earthbound Corporation et al v. MiTek USA Inc et al
Filing
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EXHIBIT 1-STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Joint Stipulation re Discovery Motion, 128 . (See Order for details)[Note Changes Made By The Court]. (bem)
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Glenn E. Turner III (CSB # 94497)
gturner@gibbsgidden.com
GIBBS GIDEN LOCHER TURNER
SENET & WITTBRODT LLLP
1880 Century Park East, 12th Floor
Los Angeles, California 90067
Tel: (310) 552-3400
Fax: (310) 552-0805
NO TE: CHANG ES M ADE BY THE COURT
Eric M. Trelz (pro hac vice)
Jeffrey L. Schultz (pro hac vice)
Lucas T Pendry (pro hac vice)
ARMSTRONG TEASDALE LLP
7700 Forsyth Blvd., Suite 1800
St. Louis, Missouri 63105
Telephone: (314) 621-5070
Facsimile: (314) 621-5065
Attorneys for Defendant MiTek US, Inc.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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EARTHBOUND CORPORATION, a
Washington corporation; and INTACT
STRUCTURAL SUPPLY, LLC, a
Washington corporation,
Plaintiffs,
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v.
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MITEK USA, INC., a Missouri
corporation; KEN KEYSE, an
individual, and the MARITAL
COMMUNITY OF KEN AND
CINDY KEYSE, JAMES MILLER, an
individual, and the MARITAL
COMMUNITY OF JAMES MILLER
AND LINDA MILLER, and JASON
BIRDWELL, an individual, and the
MARITAL COMMUNITY OF
JASON BIRDWELL AND
LACHELLE BIRDWELL,
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No. CV 16-7223-DMG (JPRx)
EXHIBIT 1 - STIPULATED
PROTECTIVE ORDER
Action filed: August 2, 2016
Action transferred: September 26,
2016
Defendants.
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KEN KEYSE, an individual and
JAMES MILLER, an individual,
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Counterclaimants,
vs.
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EARTHBOUND CORPORATION
and INTACT STRUCTURAL
SUPPLY, LLC
Counterclaim Defendants.
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1. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection may be warranted.
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Accordingly, the parties hereby stipulate to and petition the Court to enter the
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following Stipulated Protective Order. The parties acknowledge that this agreement
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is consistent with LCR 26(c). It does not confer blanket protection on all
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disclosures or responses to discovery, the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled
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to confidential treatment under the applicable legal principles, and it does not
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presumptively entitle parties to file confidential information under seal.
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2. “CONFIDENTIAL” AND “ATTORNEYS’ EYES ONLY” MATERIAL
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“Confidential” material shall include, without limitation, the following
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documents and tangible things produced or otherwise exchanged: customer contacts
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and information, payment and compensation structures, and confidential personal
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information. As a subset of “Confidential” material, “Confidential - Attorneys’
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Eyes Only” shall be information that the producing party believes in good faith is
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extremely sensitive confidential information that if disclosed to another party or
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non-party would create a substantial adverse impact on the producing party’s
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business, financial condition, ability to compete, standing in the industry, or any
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other risk of injury that could not be avoided by less restrict means; such material
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shall include, without limitation, detailed pricing and margin information,
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intellectual property, templates used to prepare quotes and job runs, and detailed
job/project information. For the purposes of this paragraph, the phrase “Attorneys’
Eyes Only”, includes Joe Carr, Esq., Sr. VP, Sec. and General Counsel of MiTek
USA, Inc., and Wes Bates, Esq., corporate counsel for the plaintiffs, provided that
they will not share any “Attorneys Eyes Only” information any third party.
3. SCOPE
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The protections conferred by this agreement cover not only confidential
material (as defined above), but also (1) any information copied or extracted from
confidential material; (2) all copies, excerpts, summaries, or compilations of
confidential material; and (3) any testimony, conversations, or presentations by
parties or their counsel that might reveal confidential material.
However, the
protections conferred by this agreement do not cover information that is in the
public domain or becomes part of the public domain through trial or otherwise.
4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1 Basic Principles. A receiving party may use confidential material that is
disclosed or produced by another party or by a non-party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation.
Confidential material may be disclosed only to the categories of persons and under
the conditions described in this agreement. Confidential material must be stored and
maintained by a receiving party at a location and in a secure manner that ensures
that access is limited to the persons authorized under this agreement.
4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
ordered by the Court or permitted in writing by the designating party, a receiving
party may disclose any “CONFIDENTIAL” material only to:
(a) the receiving party’s counsel of record in this action, as well as employees of
counsel to whom it is reasonably necessary to disclose the information for this
litigation;
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(b) the officers, directors, and employees (including in house counsel) of the
receiving party to whom disclosure is reasonably necessary for this litigation;
(c) experts and consultants to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A);
(d) the court, court personnel, and court reporters and their staff;
(e) copy or imaging services retained by counsel to assist in the duplication of
confidential material, provided that counsel for the party retaining the copy or
imaging service instructs the service not to disclose any confidential material to
third parties and to immediately return all originals and copies of any confidential
material;
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the designating party or
ordered by the Court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal confidential material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
agreement;
(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
4.3 Disclosure of “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” Information
or Items. Unless otherwise ordered by the Court or permitted in writing by the
designating party, a receiving party may disclose any “ATTORNEYS’ EYES
ONLY” material to: (a) the receiving party’s counsel of record in this action, as
well as employees of counsel to whom it is reasonably necessary to disclose the
information for this litigation; (b) in house or corporate counsel for a party, as
identified in paragraph 2 above, provided in house or corporate counsel do not
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share the information designated “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” with any other employee of the receiving party. Additionally, in house and
corporate counsel and must sign the “Acknowledgement and Agreement to Be
Bound” (Exhibit A) prior to receiving any “CONFIDENTIAL - ATTORNEYS’
EYES ONLY” material; (c) experts and consultants to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A); (d) the Court, court personnel, and court
reporters and their staff; (e) copy or imaging services retained by counsel to assist
in the duplication of confidential material, provided that counsel for the party
retaining the copy or imaging service instructs the service not to disclose any
confidential material to third parties and to immediately return all originals and
copies of any confidential material; (f) the author(s) and all recipients of the
document or the original source of the information; and (g) any other person only
upon order of the Court or upon written consent of the producing party.
4.4 Filing Confidential Material. Before filing confidential material or discussing or
referencing such material in court filings, the filing party shall confer with the
designating party to determine whether the designating party will remove the
confidential designation, whether the document can be redacted, or whether a
motion to seal or stipulation and proposed order is warranted. Local Civil Rule 79-5
sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the Court to file material under seal.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
party or non-party that designates information or items for protection under this
agreement must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The designating party must designate for
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, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or delay the case development process or
to impose unnecessary expenses and burdens on other parties) expose the
designating party to sanctions. If it comes to a designating party’s attention that
information or items that it designated for protection do not qualify for protection,
the designating party must promptly notify all other parties that it is withdrawing
the mistaken designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this
agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, disclosure or discovery material that qualifies for protection
under this agreement must be clearly so designated before or when the material is
disclosed or produced.
(a) Information in documentary form: (e.g., paper or electronic documents and
deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
proceedings), the designating party must affix the word “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains
confidential material. If only a portion or portions of the material on a page
qualifies for protection, the producing party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
(b) Testimony given in deposition or in other discovery-related proceedings: the
parties must identify on the record, during the deposition, hearing, or other
proceeding, all protected testimony, without prejudice to their right to so designate
other testimony after reviewing the transcript. Any party or non-party may, within
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fifteen days after receiving a deposition transcript, designate portions of the
transcript, or exhibits thereto, as confidential.
(c) Other tangible items: the producing party must affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
word “CONFIDENTIAL.” If only a portion or portions of the information or item
warrant protection, the producing party, to the extent practicable, shall identify the
protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the
designating party’s right to secure protection under this agreement for such
material. Upon timely correction of a designation, the receiving party must make
reasonable efforts to ensure that the material is treated in accordance with the
provisions of this agreement.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any party or non-party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a designating party’s
confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation,
a party does not waive its right to challenge a confidentiality designation by
electing not to mount a challenge promptly after the original designation is
disclosed.
6.2 Meet and Confer. The parties must make every attempt to resolve any dispute
regarding confidential designations without court involvement. Any motion
regarding confidential designations or for a protective order must include a
certification, in the motion or in a declaration or affidavit, that the movant has
engaged in a good faith meet and confer conference with other affected parties in an
effort to resolve the dispute without court action. The certification must list the
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date, manner, and participants to the conference. A good faith effort to confer
requires a face-to-face meeting or a telephone conference in compliance with Local
Rule 37.
6.3 Judicial Intervention. If the parties cannot resolve a challenge without court
intervention, the designating party may file and serve a motion to retain
confidentiality under Local Civil Rule 37. The burden of persuasion in any such
motion shall be on the designating party. Frivolous challenges, and those made for
an improper purpose (e.g., to harass or impose unnecessary expenses and burdens
on other parties) may expose the challenging party to sanctions. All parties shall
continue to maintain the material in question as confidential until the court rules on
the challenge.
7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
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If a party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that party must:
(a) promptly notify the designating party in writing and 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 the subpoena or
order is subject to this agreement. Such notification shall include a copy of this
agreement; and (c) cooperate with respect to all reasonable procedures sought to be
pursued by the designating party whose confidential material may be affected.
8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed
confidential material to any person or in any circumstance not authorized under this
agreement, the receiving party must immediately (a) notify in writing the
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designating party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the protected material, (c) inform the person or persons
to whom unauthorized disclosures were made of all the terms of this agreement,
and (d) request that such person or persons execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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When a producing party gives notice to receiving parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the receiving parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order or agreement that
provides for production without prior privilege review. Parties shall confer on an
appropriate non-waiver order under Fed. R. Evid. 502.
10. NON TERMINATION AND RETURN OF DOCUMENTS
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Within 60 days after the termination of this action, including all appeals, each
receiving party must return all confidential material to the producing party,
including all copies, extracts and summaries thereof. Alternatively, the parties may
agree upon appropriate methods of destruction.
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Notwithstanding this provision, counsel are entitled to retain one archival
copy of all documents filed with the court, trial, deposition, and hearing transcripts,
correspondence, deposition and trial exhibits, expert reports, attorney work product,
and consultant and expert work product, even if such materials contain confidential
material.
The confidentiality obligations imposed by this agreement shall remain in effect
until a designating party agrees otherwise in writing or a court orders otherwise.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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By:
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/s/ Glenn E. Turner III
/s/ Eric Trelz (pro hac vice)
/s/ Jeffrey L. Schultz (pro hac vice)
/s/ Lucas T Pendry (pro hac vice)
On behalf of MiTek USA, Inc.
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By:
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/s/ Laura K. Christa (w/ consent)
/s/ James Nelson (pro hac vice) (w/ consent)
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On behalf of Keyse, Miller, & Birdwell
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By:
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/s/ Jeffrey R. Witham (w/ consent)
/s/ Darren A. Feider (pro hac vice) (w/ consent)
/s/ Jillian Barron (pro hac vice) (w/ consent)
/s/ Jeffrey A. James (pro hac vice) (w/ consent)
On behalf of Earthbound & Intact Structural Supply
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DATED: December 5, 2016
By:
The Honorable Jean P. Rosenbluth
United States Magistrate Judge
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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 _________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the Central District of California on _______, 2016 in the case of Earthbound Corp. & Intact
Structural Supply, LLC v. MiTek USA, Inc., et al. Case No. CV 16-07223-DMG (JPRx). I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the
Central District of California for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
Signature: __________________________________
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