Jeffery Werner et al v. Azteca International Corporation et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich. (see document for further details) 24 (klg)

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1 Stephen M. Doniger (SBN 179314) 2 Scott A. Burroughs (SBN 235718) 3 Trevor W. Barrett (SBN 287174) 4 5 DONIGER / BURROUGHS 603 Rose Avenue 6 Venice, California 90291 7 Telephone: (310) 590-1820 Attorneys for Plaintiffs 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JEFFERY WERNER, et al., 13 Plaintiffs, 14 Case No 2:16-cv-07828-MWF-AJW Hon. Michael W. Fitzgerald Presiding Referred to Honorable Andrew J. Wistrich 15 v. DISCOVERY MATTER 16 AZTECA INTERNATIONAL 17 CORPORATION, et al., (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 18 Defendants. 19 20 21 22 23 24 Having considered the parties’ pleadings on file to date, and the parties’ jointly submitted Stipulated Protective Order to govern the handling of information and materials produced in the course of discovery or filed with the Court in this action, the Court determines as follows: 25 26 27 28 1 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 2 GOOD CAUSE STATEMENT It is the intent of the parties and the Court that information will not be 3 designated as confidential for tactical reasons in this case and that nothing shall be 4 designated without a good faith belief that there is good cause why it should not be 5 part of the public record of this case. Examples of confidential information that the 6 parties may seek to protect from unrestricted or unprotected disclosure include: 7 (a) 8 9 confidentiality agreement or obligation; (b) 10 11 Information that is the subject of a non-disclosure or The names, or other information tending to reveal the identity of a party’s supplier, designer, distributor, or customer; (c) Agreements with third-parties, including license agreements, 12 distributor agreements, manufacturing agreements, design 13 agreements, development agreements, supply agreements, sales 14 agreements, or service agreements; 15 (d) Research and development information; 16 (e) Proprietary engineering or technical information, including 17 product 18 information, drawings, memoranda and reports; 19 (f) design, manufacturing techniques, processing Information related to budgets, sales, profits, costs, margins, 20 licensing of technology or designs, product pricing, or other 21 internal financial/accounting information, including non-public 22 information related to financial condition or performance and 23 income or other non-public tax information; 24 (g) 25 26 27 Information related to internal operations including personnel information; (h) Information related to past, current and future product development; 28 2 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 (i) Information related to past, current and future market analyses 2 and business and marketing development, including plans, 3 strategies, forecasts and competition; and 4 (j) 5 6 Trade secrets (as defined by the jurisdiction in which the information is located). Unrestricted or unprotected disclosure of such confidential technical, 7 commercial or personal information would result in prejudice or harm to the 8 producing party by revealing the producing party’s competitive confidential 9 information, which has been developed at the expense of the producing party and 10 which represents valuable tangible and intangible assets of that party. 11 Additionally, privacy interests must be safeguarded. Accordingly, the parties 12 respectfully submit that there is good cause for the entry of this Protective Order. 13 The parties agree, subject to the Court’s approval, that the following terms 14 and conditions shall apply to this civil action. 15 1. Designated Material. 16 1.1 Information or material may be designated for confidential treatment 17 pursuant to this Protective Order by any party, person or entity producing or 18 lodging it in this action (the “Designating Party”), if: (a) produced or served, 19 formally or informally, pursuant to the Federal Rules of Civil Procedure or in 20 response to any other formal or informal discovery request in this action; and/or 21 (b) filed or lodged with the Court. All such information and material and all 22 information or material derived from it constitutes “Designated Material” under 23 this Protective Order. 24 1.2 Unless and until otherwise ordered by the Court or agreed to in 25 writing by the parties, all Designated Materials designated under this Protective 26 Order shall be used by the parties and persons receiving such Designated 27 Materials solely for conducting the above-captioned litigation and any appellate 28 3 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 proceeding relating thereto. Designated Material shall not be used by any party or 2 person receiving them for any business or any other purpose. No party or person 3 shall disclose Designated Material to any other party or person not entitled to 4 receive such Designated Material under the specific terms of this Protective 5 Order. For purposes of this Protective Order, “disclose” or “disclosed” means to 6 show, furnish, reveal or provide, indirectly or directly, any portion of the 7 Designated Material or its contents, orally or in writing, including the original or 8 any copy of the Designated Material. 9 2. Access to Designated Materials. 10 2.1 Materials Designated “CONFIDENTIAL”: Subject to the limitations 11 set forth in this Protective Order, Designated Material may be marked 12 “CONFIDENTIAL” for the purpose of preventing the disclosure of information 13 or materials that the designating party in good faith believes is confidential. 14 Before designating any specific information or material “CONFIDENTIAL,” the 15 Designating Party’s counsel shall make a good faith determination that the 16 information warrants protection under Rule 26(c) of the Federal Rules of Civil 17 Procedure. Such information may include, but is not limited to: 18 (a) The financial performance or results of the Designating Party, 19 including without limitation income statements, balance sheets, cash flow 20 analyses, budget projections, and present value calculations; 21 (b) Corporate and strategic planning by the Designating Party, including 22 without limitation marketing plans, competitive intelligence reports, sales 23 projections and competitive strategy documents; 24 (c) Names, addresses, and other information that would identify 25 customers or prospective customers, or the distributors or prospective distributors 26 of the Designating Party; 27 (d) Technical data, research and development data, and any other 28 4 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 confidential commercial information, including but not limited to trade secrets of 2 the Designating Party; 3 (e) Information used by the Designating Party in or pertaining to its 4 trade or business, which information the Designating Party believes in good faith 5 has competitive value, which is not generally known to others and which the 6 Designating Party would not normally reveal to third parties except in 7 confidence, or has undertaken with others to maintain in confidence; 8 (f) Information which the Designating Party believes in good faith falls 9 within the right to privacy guaranteed by the laws of the United States or 10 California; and 11 (g) Information which the Designating Party believes in good faith to 12 constitute, contain, reveal or reflect proprietary, financial, business, technical, or 13 other confidential information. 14 (h) The fact that an item or category is listed as an example in this or 15 other sections of this Protective Order does not, by itself, render the item or 16 category discoverable. 17 2.1.0 Materials designated “CONFIDENTIAL” may be disclosed only to 18 the following Designees: 19 2.1.1 Persons who appear on the face of Designated Materials marked 20 “CONFIDENTIAL” as an author, addressee, or recipient thereof; 21 2.1.2 Counsel retained as outside litigation attorneys of record in this 22 action, and their respective associates, clerks, legal assistants, stenographic, 23 videographic and support personnel, and other employees of such outside 24 litigation attorneys, and organizations retained by such attorneys to provide 25 litigation support services in this action and the employees of said organizations. 26 “Counsel” explicitly excludes any in-house counsel whether or not they are 27 attorneys of record in this action. 28 5 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 2.1.3 Consultants, including non-party experts and consultants retained or 2 employed by Counsel to assist in the preparation of the case, to the extent they 3 are reasonably necessary to render professional services in this action, and subject 4 to the disclosure requirements of section 2.3. Each consultant must sign a 5 certification that he or she has read this Stipulated Protective Order, will abide by 6 its provisions, and will submit to the jurisdiction of this Court regarding the 7 enforcement of this Order’s provisions. 8 2.1.4 A party’s officers and/or employees, which may include in-house 9 counsel. 10 2.1.5 The Court, its clerks and secretaries, and any court reporter retained 11 to record proceedings before the Court; 12 2.2 Materials Designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 13 EYES ONLY”: Subject to the limitations in this Protective Order, Designated 14 Materials may be marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 15 ONLY” for the purpose of preventing the disclosure of information or materials 16 which, if disclosed to the receiving party, might cause competitive harm to the 17 Designating Party. Information and material that may be subject to this 18 protection includes, but is not limited to, technical and/or research and 19 development data, intellectual property, financial, marketing and other sales data, 20 and/or information having strategic commercial value pertaining to the 21 Designating Party’s trade or business. Nothing in paragraph 2.1 shall limit the 22 information or material that can be designated “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY” under this paragraph. Before designating any 24 specific information “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 25 ONLY,” the Designating Party’s counsel shall make a good faith determination 26 that the information warrants such protection. 27 2.2.0 Materials designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 28 6 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 EYES ONLY” materials may be disclosed only to the following Designees: 2 2.2.1 Persons who appear on the face of Designated Materials marked 3 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as an author, 4 addressee, or recipient thereof; 5 2.2.2 Counsel for the parties to this action, as defined in section 2.1.2; 6 2.2.3 Consultants for the parties to this action, as defined in section 2.1.3; 7 and 8 2.2.4 The Court, its clerks and secretaries, and any court reporter retained 9 to record proceedings before the Court. 10 2.2.5 Court reporters retained to transcribe depositions. 11 2.3 If any party wishes to disclose information or materials designated 12 under this Protective Order as “HIGHLY CONFIDENTIAL,” “CONFIDENTIAL 13 – ATTORNEYS’ EYES ONLY” to any Consultant, it must first identify that 14 individual to the Counsel for the Designating Party and submit a Certification of 15 Consultant pursuant to Section 3. CONFIDENTIAL – ATTORNEYS’ EYES 16 ONLY 17 2.4 Legal Effect of Designation. The designation of any information or 18 materials as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ 19 EYES ONLY” is intended solely to facilitate the conduct of this litigation. 20 Neither such designation nor treatment in conformity with such designation shall 21 be construed in any way as an admission or agreement by any party that the 22 Designated Materials constitute or contain any trade secret or confidential 23 information. Except as provided in this Protective Order, no party to this action 24 shall be obligated to challenge the propriety of any designation, and a failure to 25 do so shall not preclude a subsequent attack on the propriety of such designation. 26 2.5 Nothing herein in any way restricts the ability of the receiving party 27 to use “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ 28 7 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 EYES ONLY” material produced to it in examining or cross-examining any 2 employee or consultant of the Designating Party. 3 4 3. Certificates Concerning Designated Materials. Each Consultant as 5 defined in section 2.1.3, to whom any Designated Materials will be disclosed 6 shall, prior to disclosure of such material, execute the Acknowledgement of 7 Stipulated Protective Order in the form attached hereto as Exhibit A. Counsel 8 who makes any disclosure of Designated Materials shall retain each executed 9 Acknowledgement of Stipulated Protective Order and shall circulate copies to all 10 Counsel for the opposing party concurrently with the identification of the 11 Consultant to the attorneys for the Designating Party pursuant to Section 2.3. 12 4. Use of Designated Materials by Designating Party. Nothing in this 13 Protective Order shall limit a Designating Party’s use of its own information or 14 materials, or prevent a Designating Party from disclosing its own information or 15 materials to any person. Such disclosure shall not affect any designations made 16 pursuant to the terms of this Protective Order, so long as the disclosure is made in 17 a manner that is reasonably calculated to maintain the confidentiality of the 18 information. 19 5. Manner of Designating Written Materials. 20 5.1 Documents, discovery responses and other written materials shall be 21 designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – 22 ATTORNEYS’ EYES ONLY” whether in whole or in part, as follows. 23 5.2 The producing party shall designate materials by placing the legend 24 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 25 ONLY” on each page so designated prior to production. If the first or cover page 26 of a multi-page document bears the legend “CONFIDENTIAL,” “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the entire document shall be 28 8 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 deemed so designated, and the absence of marking each page shall not constitute 2 a waiver of the terms of this Order. If the label affixed to a computer disk 3 containing multiple files bears the legend “CONFIDENTIAL,” 4 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the entire disk shall be 5 deemed so protected, and the absence of marking of each file shall not constitute 6 a waiver of the terms of this Order. 7 5.3 A designation of ““CONFIDENTIAL,” or “HIGHLY 8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as to any item, thing or 9 object that cannot otherwise be categorized as a document, shall be made: (1) by 10 placing the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 11 ATTORNEYS’ EYES ONLY” on the thing, object or container within which it is 12 stored; or (2) by specifically identifying, in writing, the item and the level of 13 confidentiality designation, where such labeling is not feasible. 14 5.4 When a party wishes to designate as “CONFIDENTIAL,” or 15 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” materials 16 produced by someone other than the Designating Party (a “Producing Party”), 17 such designation shall be made: 18 5.4.1 Within fifteen (15) business days from the date that the Designating 19 Party receives copies of the materials from the producing or disclosing entity; and 20 5.4.2 By notice to all parties to this action and to the Producing Party, if 21 such party is not a party to this action, identifying the materials to be designated 22 with particularity (either by production numbers or by providing other adequate 23 identification of the specific material). Such notice shall be sent by facsimile and 24 regular mail. 25 5.4.3. A party shall be permitted to designate as “CONFIDENTIAL,” or 26 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material produced 27 by a Producing Party only where: 28 9 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 a. The material being produced was provided to or developed by such 2 Producing Party: (i) under a written confidentiality agreement with the Designating 3 Party; or (ii) within a relationship with the Designating Party (or a party operating 4 under the control thereof) in which confidentiality is imposed by law (including, 5 but not limited, to the employment relationship and the vendor-customer 6 relationship); and 7 b. The material being produced would be considered confidential material 8 of the Designating Party under Section 2.1 of this Agreement if it were in the 9 possession of the Designating Party. 10 5.5 Upon notice of designation, all persons receiving notice of the 11 requested designation of materials shall: 12 5.5.1 Make no further disclosure of such Designated Material or 13 information contained therein, except as allowed in this Protective Order; 14 5.5.2 Take reasonable steps to notify any persons known to have 15 possession of or access to such Designated Materials of the effect of such 16 designation under this Protective Order; and 17 5.5.3 If “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY” material or information contained therein is 19 disclosed to any person other than those entitled to disclosure in the manner 20 authorized by this Protective Order, the party responsible for the disclosure shall, 21 immediately upon learning of such disclosure, inform the Designating Party in 22 writing of all pertinent facts relating to such disclosure, and shall make every 23 effort to prevent further disclosure by the unauthorized person(s). 24 6. Manner of Designating Deposition Testimony. 25 6.1 Deposition transcripts and portions thereof taken in this action may 26 be designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 27 ATTORNEYS’ EYES ONLY” during the deposition or after, in which case the 28 10 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 portion of the transcript containing Designated Material shall be identified in the 2 transcript by the Court Reporter as “CONFIDENTIAL,” or “HIGHLY 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The designated testimony 4 shall be bound in a separate volume and marked by the reporter accordingly. 5 6.2 Where testimony is designated during the deposition, the 6 Designating Party shall have the right to exclude, at those portions of the 7 deposition, all persons not authorized by the terms of this Protective Order to 8 receive such Designated Material. 9 6.3 Within thirty (30) days after a deposition transcript is certified by the 10 court reporter, any party may designate pages of the transcript and/or its exhibits 11 as Designated Material. During such thirty (30) day period, the transcript in its 12 entirety shall be treated as “CONFIDENTIAL” (except for those portions 13 identified earlier as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 14 ONLY” which shall be treated accordingly from the date of designation). If any 15 party so designates such material, the parties shall provide written notice of such 16 designation to all parties within the thirty (30) day period. Designated Material 17 within the deposition transcript or the exhibits thereto may be identified in 18 writing by page and line, or by underlining and marking such portions 19 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 20 ONLY” and providing such marked-up portions to all counsel. 21 7. Copies. All complete or partial copies of a document that disclose 22 Designated Materials shall be subject to the terms of this Protective Order. 23 8. Court Procedures. 24 8.1 Disclosure of Designated Material to Court Officials. Subject to the 25 provisions of this section, Designated Material may be disclosed to the Court, 26 Court officials or employees involved in this action (including court reporters, 27 persons operating video recording equipment at depositions, and any special 28 11 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 master, referee, expert, technical advisor or Third-Party Consultant appointed by 2 the Court), and to the jury in this action, and any interpreters interpreting on 3 behalf of any party or deponent. 4 8.2 Filing Designated Materials with the Court. Nothing in this Order 5 shall vary the requirements for filing under Seal imposed by the Federal Rules of 6 Civil Procedure or the Local Rules of this Court. If a party wishes to file with the 7 Court any document, transcript or thing containing information which has been 8 designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 9 ATTORNEYS’ EYES ONLY” that Party shall follow the procedures set forth in 10 Local rule 79-5.2.2 (which sets out different procedures depending upon whether 11 or not the party seeking to file material under seal is the same party which 12 designated the material as confidential) and ensure the materials are marked with 13 the legend: 14 “[CONFIDENTIAL, or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY] INFORMATION SUBJECT TO PROTECTIVE ORDER.” 15 16 Filing the document under seal shall not bar any party from unrestricted use 17 or dissemination of those portions of the document that do not contain material 18 designated “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 19 ATTORNEYS’ EYES ONLY.” If a filing party fails to seek to file under seal 20 items which a party in good faith believes to have been designated as or to 21 constitute “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – 22 ATTORNEYS’ EYES ONLY” material, such party may move the Court to file 23 said information under seal within four (4) days of service of the original filing. 24 Notice of such designation shall be given to all parties. Nothing in this provision 25 relieves a party of liability for damages caused by failure to properly seek the filing 26 of Designated Material under seal in accordance with Local Rule 79-5.2.2. 27 8.3 Retrieval of Designated Materials. The party responsible for lodging 28 12 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 or filing the Designated Materials shall be responsible for retrieving such 2 Designated Materials from the Court following the final termination of the action 3 (including after any appeals), to the extent the Court permits such retrieval. 4 9 CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 9.1 Timing of Challenges. Any Party or Non-Party may challenge a 6 designation of confidentiality at (the “Challenging Party”) at any time consistent 7 with the Court’s scheduling order(s). Unless a prompt challenge to a Designating 8 Party’s confidentiality designation is necessary to avoid foreseeable, substantial 9 unfairness, unnecessary economic burdens, or a significant disruption or delay of 10 the litigation, a Party does not waive its right to challenge a confidentiality 11 designation by electing not to mount a challenge promptly after the original 12 designation is disclosed. 13 9.2 Meet and Confer. The Challenging Party shall initiate the dispute 14 resolution process by providing written notice of each designation it is challenging 15 and describing the basis for each challenge. To avoid ambiguity as to whether a 16 challenge has been made, the written notice must recite that the challenge to 17 confidentiality is being made in accordance with this specific paragraph of the 18 Protective Order. The parties shall attempt to resolve each challenge in good faith 19 and must begin the process by conferring directly (in voice to voice dialogue; other 20 forms of communication are not sufficient) within 14 days of the date of service of 21 notice. In conferring, the Challenging Party must explain the basis for its belief 22 that the confidentiality designation was not proper and must give the Designating 23 Party an opportunity to review the designated material, to reconsider the 24 circumstances, and, if no change in designation is offered, to explain the basis for 25 the chosen designation. A Challenging Party may proceed to the next stage of the 26 challenge process only if it has engaged in this meet and confer process first or 27 establishes that the Designating Party is unwilling to participate in the meet and 28 13 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 confer process in a timely manner. 2 9.3 Judicial Intervention. If the Parties cannot resolve a challenge without 3 court intervention, the Challenging Party shall file and serve a motion to challenge 4 confidentiality under Civil Local Rule 37-1 et seq. (and in compliance with Civil 5 Local Rule 79-5.1, if applicable) within 21 days of the initial notice of challenge or 6 within 14 days of the parties agreeing that the meet and confer process will not 7 resolve their dispute, whichever is earlier. Each such motion must be accompanied 8 by a competent declaration affirming that the movant has complied with the meet 9 and confer requirements imposed in the preceding paragraph. Failure by the 10 Challenging Party to make such a motion including the required declaration within 11 21 days (or 14 days, if applicable) shall automatically waive the ability to 12 challenge the confidentiality designation for each challenged designation. In 13 addition, the Designating Party may file a motion for a protective order preserving 14 the confidential designation at any time if there is good cause for doing so. Any 15 motion brought pursuant to this provision must be accompanied by a competent 16 declaration affirming that the movant has complied with the meet and confer 17 requirements imposed by the preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the 19 Challenging Party. Frivolous challenges and those made for an improper purpose 20 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 21 expose the Challenging Party to sanctions. Until such time as a determination has 22 been made on any such motion by the Court, all parties shall continue to afford the 23 material in question the level of protection to which it is entitled under the 24 Producing Party’s designation until the court rules on the challenge. 25 10. Client Communication. Nothing in this Protective Order shall 26 prevent or otherwise restrict counsel from rendering advice to their clients and, in 27 the course of rendering such advice, relying upon the examination of Designated 28 14 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 Material. In rendering such advice and otherwise communicating with the client, 2 however, counsel shall not disclose any Designated Material, except as otherwise 3 permitted by this Protective Order. 4 11. No Prejudice. 5 11.1 This Protective Order shall not diminish any existing obligation or 6 right with respect to Designated Material, nor shall it prevent a disclosure to 7 which the Designating Party consented in writing before the disclosure takes 8 place. 9 11.2 Unless the parties stipulate otherwise, evidence of the existence or 10 nonexistence of a designation under this Protective Order shall not be admissible 11 for any purpose during any proceeding on the merits of this action. 12 11.3 If any party required to produce documents contends that it 13 inadvertently produced any Designated Material without marking it with the 14 appropriate legend, or inadvertently produced any Designated Material with an 15 incorrect legend, the producing party may give written notice to the receiving 16 party or parties, including appropriately stamped substitute copies of the 17 Designated Material. If the parties collectively agree to replacement of the 18 Designated Material, then the documents will be so designated. Within five (5) 19 business days of receipt of the substitute copies, the receiving party shall return 20 the previously unmarked or mismarked items and all copies thereof. If the parties 21 do not collectively agree to replacement of the Designated Material, the 22 producing party shall comply with the procedure of Local Rule 37 in seeking 23 protection for the inadvertently produced material. 24 11.4 Neither the provisions of this Protective Order, nor the filing of any 25 material under seal, shall prevent the use in open court, in deposition, at any 26 hearing, or at trial of this case of any material that is subject to this Protective 27 Order or filed under seal pursuant to its provisions. At deposition, the party using 28 15 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 Designated Material must request that the portion of the proceeding where use is 2 made be conducted so as to exclude persons not qualified to receive such 3 Designated Material. At trial, the party using Designated Material must request 4 that the portion of the proceeding where use is made be conducted so as to 5 exclude persons not qualified to receive such Designated Material. All 6 confidentiality designations or legends placed pursuant to this Stipulated 7 Protective Order shall be removed from any document or thing used as a trial 8 exhibit in this case. The removal of such confidentiality designations or legends 9 under the preceding sentence shall not affect the treatment of such documents and 10 things as Designated Material under this Stipulated Protective Order. Upon 11 request of a party, the parties shall meet and confer concerning the use and 12 protection of Designated Material in open court at any hearing. Prior to the 13 pretrial conference, the parties shall meet and confer concerning appropriate 14 methods for dealing with Designated Material at trial. 15 11.5 Any inadvertent production of documents containing privileged 16 information shall not be deemed to be a waiver of the attorney-client privilege, 17 work product doctrine, or any other applicable privilege or doctrines. All parties 18 specifically reserve the right to demand the return of any privileged documents 19 that it may produce inadvertently during discovery if the producing party 20 determines that such documents contain privileged information. After receiving 21 notice of such inadvertent production by the producing party, the receiving party 22 agrees to make reasonable and good faith efforts to locate and return to the 23 producing party all such inadvertently produced documents. 24 12. Modification and Survival. 25 12.1 Modification. The parties reserve the right to seek modification of 26 this Protective Order at any time for good cause. The parties agree to meet and 27 confer prior to seeking to modify this Protective Order for any reason. The 28 16 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 restrictions imposed by this Protective Order may only be modified or terminated 2 by written stipulation of all parties or by order of this Court. Parties entering into 3 this Protective Order will not be deemed to have waived any of their rights to 4 seek later amendment to this Protective Order. 5 12.2 Survival and Return of Designated Material. This Protective Order 6 shall survive termination of this action prior to trial of this action. Upon final 7 termination of the action prior to trial of this action, and at the written request 8 of the Designating Party, all Designated Material, including deposition 9 testimony, and all copies thereof, except for copies of designated materials in 10 the possession of the Court or Court personnel, shall be returned to counsel 11 for the Designating Party or, at the option of the Designating Party, shall be 12 destroyed. Upon request for the return or destruction of Designated 13 Materials, counsel shall certify their compliance with this provision and shall 14 serve such certification to counsel for the Designating Party not more than 15 ninety (90) days after the written request to return or destroy Designated 16 Materials. Counsel who have submitted one or more Certificate(s) prepared 17 pursuant to Section 3 do not need to retain such Certificate(s) past the ninety 18 (90) day period. 19 13. No Contract. This Protective Order shall not be construed to 20 create a contract between the parties or between the parties and their 21 respective counsel. 22 14. Court’s Retention of Jurisdiction. The Court retains jurisdiction 23 after final termination of the action prior to trial, to enforce this Stipulation. 24 15. Exception for Public Information. Nothing in this Stipulation shall be 25 deemed in any way to restrict the use of documents or information which are 26 lawfully obtained or publicly available to a party independently of discovery in this 27 action, whether or not the same material has been obtained during the course of 28 17 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 discovery in the action and whether or not such documents or information have 2 been designated hereunder. However, in the event of a dispute regarding such 3 independent acquisition, a party wishing to use any independently acquired 4 documents or information shall bear the burden of proving independent 5 acquisition. 6 7 IT IS SO ORDERED. 8 9 Dated: August 23, 2017 10 _________________________ Honorable Andrew J. Wistrich United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER 1 Exhibit A 2 UNITED STATES DISTRICT COURT 3 CENTRAL DISTRICT OF CALIFORNIA 4 5 7 Plaintiffs, Case No.: 16-CV-07828-MWF-AJW Hon. Michael W. Fitzgerald Presiding Referred to Honorable Andrew J. Wistrich 8 DISCOVERY MATTER 6 JEFFERY WERNER, et al., v. 9 10 AZTECA INTERNATIONAL CORPORATION, et al., 11 Defendants. 12 STIPULATED PROTECTIVE ORDER 13 14 15 16 17 18 The undersigned hereby acknowledges that he/she has read the STIPULATED PROTECTIVE ORDER entered in the above captioned litigation, and that he/she fully understands and agrees to abide by the obligations and conditions thereof. 19 Dated: _____________________ 20 ______________________________ (Signature) 21 ______________________________ 22 (Print Name) 23 24 25 26 27 28 19 (PROPOSED) ORDER TO STIPULATED PROTECTIVE ORDER

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