San Jose Pacifica Real Estate, S. de R.L. de C.V. et al v. Fidelity National Title Insurance Company

Filing 35

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 34 . [See Order for details.] (san)

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David Littman, Esq.
Admitted Pro Hac Vice
Texas Bar No. 24013049
[e-mail]

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Bridget M. Moss
California Bar No. 123652
FIDELITY NATIONAL LAW GROUP
915 Wilshire Blvd., Suite 2100
Los Angeles, CA 90017
(213)-438-7200; FAX [phone]
[e-mail]
Attorney for Fidelity National Title Insurance Company

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SAN JOSE PACIFICA REAL ESTATE DE RL )
DE CV and REAL ESTATE PACIFICA RT, S. )
DE. R.L. DE. C.V.
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Plaintiffs,
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vs.
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FIDELITY NATIONAL TITLE INSURANCE )
COMPANY,
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Defendant.
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)

Case No. 2:16-cv-07235-SVW-JEM

[proposed]
PROTECTIVE ORDER

STEPHEN V. WILSON, U.S.D.J.:

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WHEREAS, this Court, by request of the parties, issues a

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protective order pursuant to Federal Rule of Civil Procedure 26(c) to protect

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the confidentiality of nonpublic and competitively sensitive information that

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they may need to disclose in connection with discovery in this action;
WHEREAS, the Parties, through counsel, agree to the following
terms; and
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WHEREAS, this Court finds good cause exists for issuance of an

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appropriately tailored confidentiality order governing the pretrial phase of this
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action,

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IT IS HEREBY ORDERED that any person subject to this

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Order- including without limitation the Parties to this action (including their
respective corporate parents, successors, and assigns), their representatives,
agents, experts and consultants, all third parties providing discovery in this

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action, and all other interested persons with actual or constructive notice of
this Order- will adhere to the following terms, upon pain of contempt:

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1.

With respect to "Discovery Material" (i.e., information of

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any kind produced or disclosed in the course of discovery in this action) that

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a person has designated as "Confidential" pursuant to this Order, no person

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subject to this Order may disclose such Confidential Discovery Material to

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anyone else except as this Order expressly permits:

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2.

The Party or person producing or disclosing Discovery

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Material ("Producing Party") may designate as Confidential only the

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portion of such material that it reasonably and in good faith believes

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consists of:

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(a)

previously non-disclosed financial information (including
without limitation profitability reports or estimates,
percentage fees, design fees, royalty rates, minimum
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guarantee payments, sales reports, and sale margins);

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(b)

previously non-disclosed material relating to ownership or

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control of any non-public company;

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(c)

previously non-disclosed business plans, product-

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development information, or marketing plans;

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(d)

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any information of a personal or intimate nature regarding
any individual; or

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(e)

subsequently affords confidential status.

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any other category of information this Court

3.

With respect to the Confidential portion of any Discovery

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Material other than deposition transcripts and exhibits, the Producing Party or

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its counsel may designate such portion as "Confidential" by: (a) stamping or

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otherwise clearly marking as "Confidential" the protected portion in a manner

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that will not interfere with legibility or audibility; and (b) producing for future

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public use another copy of said Discovery Material with the confidential

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information redacted.
4.

A Producing Party or its counsel may designate deposition

exhibits or portions of deposition transcripts as Confidential Discovery

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Material either by: (a) indicating on the record during the deposition that a
question calls for Confidential information, in which case the reporter will
bind the transcript of the designated testimony in a separate volume and mark
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it as "Confidential Information Governed by Protective Order;" or (b)

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notifying the reporter and all counsel of record, in writing, within 30 days after
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a deposition has concluded, of the specific pages and lines of the transcript that

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are to be designated "Confidential," in which case all counsel receiving the

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transcript will be responsible for marking the copies of the designated
transcript in their possession or under their control as directed by the
Producing Party or that person's counsel. During the 30-day period following

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a deposition, all Parties will treat the entire deposition transcript as if it had
been designated Confidential.
5.

If at any time before the trial of this action a Producing

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Party realizes that it should have designated as Confidential some portion(s)

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of Discovery Material that it previously produced without limitation, the

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Producing Party may so designate such material by so apprising all prior

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recipients in writing. This section is applicable to any documents that were

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produced prior to the execution of this protective order. Thereafter, this Court

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and all persons subject to this Order will treat such designated portion(s) of
the Discovery Material as Confidential.
6.

Nothing contained in this Order will be construed as: (a) a

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waiver by a Party or person of its right to object to any discovery request; (b) a
waiver of any privilege or protection; or (c) a ruling regarding the admissibility
at trial of any document, testimony, or other evidence.
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7.

Where a Producing Party has designated Discovery

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Material as Confidential, other persons subject to this Order may disclose
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such information only to the following persons:
(a)

the Parties to this action, their insurers, and counsel to their

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insurers;

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(b)

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counsel retained specifically for this action, including any
paralegal, clerical, or other assistant that such outside counsel

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employs and assigns to this matter;

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(c)

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outside vendors or service providers (such as copy-service
providers and document-management consultants) that

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counsel hire and assign to this matter;

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(d)

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any mediator or arbitrator that the Parties engage in this matter
or that this Court appoints, provided such person has first

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executed a Non-Disclosure Agreement in the form annexed as

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an Exhibit hereto;

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(e)

as to any document, its author, its addressee, and any

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other person indicated on the face of the document as

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having received a copy;

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(f)

any witness who counsel for a Party in good faith believes may
be called to testify at trial or deposition in this action, provided
such person has first executed a Non-Disclosure Agreement in
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the form annexed as an Exhibit hereto;

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any person a Party retains to serve as an expert witness or

(g)

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otherwise provide specialized advice to counsel in connection

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with this action, provided such person has first executed a

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Non-Disclosure Agreement in the form annexed as an Exhibit

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hereto;

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stenographers engaged to transcribe depositions the Parties

(h)

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conduct in this action; and

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(i)

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this Court, including any appellate court, its support
personnel, and court reporters.

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8.

Before disclosing any Confidential Discovery Material to any

person referred to in subparagraphs 7(d), 7(f), or 7(g) above, counsel must
provide a copy of this Order to such person, who must sign a Non-Disclosure

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Agreement in the form annexed as an Exhibit hereto stating that he or she has

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read this Order and agrees to be bound by its terms. Said counsel must retain

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each signed Non-Disclosure Agreement, hold it in escrow, and produce it to

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opposing counsel either before such person is permitted to testify (at deposition

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or trial) or at the conclusion of the case, whichever comes first.

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9.

Any party filing documents under seal must

simultaneously file with the Court a letter brief and supporting declaration
justifying- on a particularized basis- the continued sealing of such
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documents. The parties should be aware that the Court will unseal documents

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if it is unable to make "specific, on the record findings ... demonstrating that
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closure is essential to preserve higher values and is narrowly tailored to serve

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that interest." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d

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Cir. 2006).
10.

The Court also retains discretion whether to afford

confidential treatment to any Discovery Material designated as Confidential

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and submitted to the Court in connection with any motion, application, or
proceeding that may result in an order and/or decision by the Court. All
persons are hereby placed on notice that the Court is unlikely to seal or

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otherwise afford confidential treatment to any Discovery Material introduced

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in evidence at trial, even if such material has previously been sealed or

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designated as Confidential.

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11.

In filing Confidential Discovery Material with this Court,

or filing portions of any pleadings, motions, or other papers that disclose

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such Confidential Discovery Material ("Confidential Court Submission"),

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the Parties shall publicly file a redacted copy of the Confidential Court

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Submission via the Electronic Case Filing System. The Parties shall file an

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unredacted copy of the Confidential Court Submission under seal with the
Clerk of this Court, and the Parties shall serve this Court and opposing
counsel with unredacted courtesy copies of the Confidential Court
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Submission.

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12.

Any Party who objects to any designation of confidentiality

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may at any time before the trial of this action serve upon counsel for the

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Producing Party a written notice stating with particularity the grounds of the

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objection. If the Parties cannot reach agreement promptly, counsel for all
affected Parties will address their dispute to this Court.
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Any Party who requests additional limits on disclosure

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(such as "attorneys' eyes only" in extraordinary circumstances), may at any
time before the trial of this action serve upon counsel for the recipient Parties
a written notice stating with particularity the grounds of the request. If the

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Parties cannot reach agreement promptly, counsel for all affected Parties will

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address their dispute to this Court.

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14.

Recipients of Confidential Discovery Material under this

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Order may use such material solely for the prosecution and defense of this

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action and any appeals thereto, and not for any business, commercial, or

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competitive purpose or in any other litigation proceeding. Nothing contained in

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this Order, however, will affect or restrict the rights of any Party with respect to

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its own documents or information produced in this action.

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15.

Nothing in this Order will prevent any Party from

producing any Confidential Discovery Material in its possession in response
to a lawful subpoena or other compulsory process, or if required to produce
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by law or by any government agency having jurisdiction, provided that such

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Party gives written notice to the Producing Party as soon as reasonably
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possible, and if permitted by the time allowed under the request, at least 10

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days before any disclosure. Upon receiving such notice, the Producing Party

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will bear the burden to oppose compliance with the subpoena, other
compulsory process, or other legal notice if the Producing Party deems it
appropriate to do so.

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16.

Each person who has access to Discovery Material designated

as Confidential pursuant to this Order must take all due precautions to prevent
the unauthorized or inadvertent disclosure of such material.

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17.

Within 60 days of the final disposition of this action-

including all appeals –upon written request all recipients of Confidential
Discovery Material must either return it- including all copies thereof- to the

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Producing Party, or, upon permission of the Producing Party, destroy such

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material- including all copies thereof. Notwithstanding this provision, the

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attorneys that the Parties have specifically retained for this action may retain an

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archival copy of all pleadings, motion papers, transcripts, expert reports, legal

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memoranda, correspondence, or attorney work product, even if such materials

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contain Confidential Discovery Material. Any such archival copies that contain
or constitute Confidential Discovery Material remain subject to this Order.
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This Order will survive the termination of the litigation and
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will continue to be binding upon all persons to whom Confidential Discovery

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Material is produced or disclosed.
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///

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///

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///

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19.

This Court will retain jurisdiction over all persons subject to

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this Order to the extent necessary to enforce any obligations arising hereunder

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or to impose sanctions for any contempt thereof.

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IT IS SO ORDERED.

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Dated: 12/21/2016

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/s/John E. McDermott
John E. McDermott
United States Magistrate Judge

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Presented by:

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Bridget M. Moss
California Bar No. 123652
FIDELITY NATIONAL LAW GROUP
915 Wilshire Blvd., Suite 2100
Los Angeles, CA 90017

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/s/ Bridget M. Moss
Bridget M. Moss
Attorney for Defendant
FIDELITY NATIONAL LAW GROUP

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