Richard Strick, M.D. v. United Retirement Plan Consultants, Inc.

Filing 29

STIPULATED PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon. Re Stipulation for Protective Order 28 . (ib)

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1 2 3 4 5 6 7 8 Amir H. Tadjedin (SBN 186967) Wendy M. Thomas (SBN 268695) MARKUN ZUSMAN FRENIERE & COMPTON LLP 17383 Sunset Boulevard, Suite A380 Pacific Palisades, California 90272 Telephone: (310) 454-5900 Facsimile: (310) 454-5970 Attorneys for Defendant United Retirement Plan Consultants, Inc. 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 RICHARD STRICK, M.D., INC. PROFIT 12 SHARING PLAN AND RICHARD A. 13 STRICK, STIPULATED PROTECTIVE ORDER 14 15 Case No. 2:16-CV-08206-FMO-AFM Plaintiffs, Action Filed: November 3, 2016 Trial Date: March 20, 2018 v. 16 UNITED RETIREMENT PLAN 17 CONSULTANTS, INC., 18 Defendant. 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 Plaintiffs Richard Strick, M.D., Inc. Profit Sharing Plan and Richard Strick and 2 Defendant United Retirement Plan Consultants, Inc., by and through their respective 3 undersigned counsel of record, hereby stipulate as follows: GOOD CAUSE STATEMENT 4 5 This action is likely to involve trade secrets, customer and pricing lists and 6 other valuable research, development, commercial, financial, technical and/or 7 proprietary information for which special protection from public disclosure and from 8 use for any purpose other than prosecution of this action is warranted. Such 9 confidential and proprietary materials and information consist of, among other things, 10 confidential business or financial information, information regarding confidential 11 business practices, or other confidential research, development, or commercial 12 information (including information implicating privacy rights of third parties), 13 information otherwise generally unavailable to the public, or which may be privileged 14 or otherwise protected from disclosure under state or federal statutes, court rules, case 15 decisions, or common law. Accordingly, to expedite the flow of information, to 16 facilitate the prompt resolution of disputes over confidentiality of discovery 17 materials, to adequately protect information the parties are entitled to keep 18 confidential, to ensure that the parties are permitted reasonable necessary uses of such 19 material in preparation for and in the conduct of trial, to address their handling at the 20 end of the litigation, and serve the ends of justice, a protective order for such 21 information is justified in this matter. It is the intent of the parties that information 22 will not be designated as confidential for tactical reasons and that nothing be so 23 designated without a good faith belief that it has been maintained in a confidential, 24 non-public manner, and there is good cause why it should not be part of the public 25 record of this case. 26 SCOPE OF PROTECTION 27 1. This Stipulated Protective Order (the “Protective Order”) shall apply to all 28 information, materials or tangible things hereafter subject to discovery in this action, 2 STIPULATED PROTECTIVE ORDER 1 including, without limitation, documents, testimony and responses produced in the 2 course of this litigation by any party or nonparty (the “Producing Party”), which the 3 Producing Party designates as “CONFIDENTIAL – SUBJECT TO PROTECTIVE 4 ORDER”, referred to as “Confidential Material.” 5 2. Confidential Material shall be designated as “CONFIDENTIAL – 6 SUBJECT TO PROTECTIVE ORDER” if the Confidential Material contains 7 personnel and employee information or non-public financial information. 8 3. To the extent that any third party to this litigation (a “Third Party”) wishes 9 to become a party to the Protective Order, the Third Party shall execute an 10 undertaking in the form of Exhibit A attached hereto. The parties agree to treat any 11 Confidential Material produced by the Third Party in accordance with the provisions 12 of the Protective Order. 13 4. All Confidential Material produced or provided by any Producing Party in 14 the instant matter shall be used by the party receiving or reviewing it (the “Receiving 15 Party”) only for the purposes of preparing for and conducting the litigation or 16 settlement of the instant action and shall not be used for any business, commercial, 17 competitive, personal, or other purpose whatsoever. 18 5. This Protective Order is entered without prejudice to the right of any party 19 to apply to the Court at any time for additional protection, or to relax or rescind the 20 restrictions hereof. However, prior to any application to the Court to enlarge or 21 reduce the restrictions of this Protective Order, the parties will confer in good faith in 22 an effort to resolve such issues and determine by stipulation an appropriate 23 modification of the original Protective Order. 24 6. Unless and until otherwise ordered by the Court or agreed to in writing by 25 the parties, all Confidential Material designated as “CONFIDENTIAL – SUBJECT 26 TO PROTECTIVE ORDER” shall be treated as such and shall not be disclosed 27 except in accordance with the terms of this Protective Order. 28 3 STIPULATED PROTECTIVE ORDER 1 METHOD OF DESIGNATING CONFIDENTIAL INFORMATION 2 7. The Producing Party shall designate Confidential Material as such by 3 marking each document, pleading, deposition, or tangible thing “CONFIDENTIAL – 4 SUBJECT TO PROTECTIVE ORDER” directly on such material. With respect to 5 electronic documents, a marking of “CONFIDENTIAL – SUBJECT TO 6 PROTECTIVE ORDER” on a disk is sufficient to designate all documents contained 7 on the disk as Confidential Material. In the alternative, the Producing Party may 8 designate material as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” 9 without marking it directly by providing written notice that certain material is to be 10 deemed as Confidential Material. Such notice must provide sufficient specificity. 11 8. To designate deposition testimony as Confidential Material, the party 12 requesting the designation may state during the deposition which testimony should be 13 treated as Confidential Material and request that the Court reporter print that portion 14 of the transcript separately and mark it CONFIDENTIAL – SUBJECT TO 15 PROTECTIVE ORDER. Notwithstanding the foregoing, within five (5) days of 16 receipt of a deposition transcript from the Court reporter, any party shall have the 17 right to designate particular deposition testimony and/or exhibits as Confidential 18 Material, even if the party failed to designate such information as Confidential 19 Material at the time of the deposition. Accordingly, all parties will treat any and all 20 deposition transcripts as CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER 21 for the first ten (10) days after the subject transcript is mailed or delivered to counsel. 22 The party making the designation shall be responsible for ensuring that those portions 23 of the deposition transcripts and exhibits designated CONFIDENTIAL – SUBJECT 24 TO PROTECTIVE ORDER are stamped and bound by the reporter in the manner 25 described herein. 26 9. In accordance with Fed. R. Civ. Proc. 26(b)(5)(B), if a Producing Party 27 inadvertently produces a document that otherwise is not discoverable for reasons of 28 the attorney-client privilege or work product immunity or both, such inadvertent 4 STIPULATED PROTECTIVE ORDER 1 production shall not constitute any waiver of attorney-client privilege or work 2 product immunity and all copies of such inadvertently produced documents shall 3 promptly be returned by the Receiving Party to the Producing Party upon demand. 4 10. If any party or nonparty required to produce materials or information in the 5 litigation of the instant matter inadvertently produces any Confidential Material 6 without marking it with the appropriate legend, that party may, at any time after its 7 inadvertent disclosure, notify all other parties to this action that the material is 8 deemed CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER and should be 9 treated as such in accordance with the provisions of this Agreement. The Receiving 10 Party shall not be liable or responsible for any disclosure of information prior to the 11 party’s receipt of the Producing Party’s subsequent designation of Confidential 12 Material, other than as specified in the foregoing paragraph. However, a Producing 13 Party’s inadvertent or unintentional failure to designate information as 14 “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” shall not be deemed a 15 waiver in whole or in part of that Producing Party’s claim of confidentiality of the 16 Producing Party provided the Producing Party takes prompt action after discovery of 17 such omission to notify all parties in writing that such information constitutes 18 “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” information. 19 11. Upon receipt of notice pursuant to Paragraphs 7, 8 or 10 above that a 20 document, tangible thing, deposition transcript, or portion of deposition transcript that 21 has been designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, 22 such material shall be treated CONFIDENTIAL – SUBJECT TO PROTECTIVE 23 ORDER. All parties or nonparties in possession of such material shall stamp it with 24 the appropriate designation when reproducing it pursuant to Paragraph 12. 25 26 27 REPRODUCTION OF CONFIDENTIAL MATERIAL 12. No Confidential Material shall be reproduced except as required in connection with discovery in the instant case. 28 5 STIPULATED PROTECTIVE ORDER 1 2 3 13. All copies or derivations of Confidential Material shall constitute Confidential Material as provided in this Agreement and shall be treated as such 14. Nothing herein shall restrict a person authorized to have access to 4 Confidential Material from making working copies, abstracts, digests, and/or analyses 5 of Confidential Material for use in connection with this action. Such working copies, 6 abstracts, digests, and analyses shall be deemed to have the same level of protection 7 as the original Confidential Material under the terms of this Protective Order. Further, 8 nothing herein shall restrict an authorized recipient from converting or translating 9 such information into machine-readable form for incorporation in a data retrieval 10 system used in connection with this action, provided that access to such information, 11 in whatever form stored or reproduced, shall be limited to authorized recipients. 12 13 USE OF CONFIDENTIAL MATERIAL 15. Confidential Material may be referred to by a Receiving Party or Producing 14 Party in papers filed with the Court in the instant action and/or in discovery papers. 15 However, if a document containing Confidential Material is filed with the Court, it 16 shall be filed under seal in compliance with Local Rule 79-5.1 of the U.S. District 17 Court for the Central District of California and Section V of General Order 10-07 of 18 the Central District of California (revised August 2, 2010). Any papers containing 19 Confidential Material shall indicate clearly what portions are designated as 20 CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER. This Protective Order 21 does not entitle the Parties to file material under seal. Good cause to file under seal 22 must be established by submission of competent evidence via declaration establishing 23 that the material sought to be filed under seal qualifies as confidential, privileged or 24 otherwise protectable. 25 16. Nothing in this Protective Order shall be deemed to alter or otherwise 26 amend the Parties’ obligation to follow the procedures set forth in Federal Rules of 27 Civil Procedure, the Local Rules of the U.S. District Court for the Central District of 28 California or any Order by this Court. To the extent there is any conflict between the 6 STIPULATED PROTECTIVE ORDER 1 obligations set forth in this Protective Order – which the parties do not believe is the 2 case – the Federal Rules of Civil Procedure, the Local Rules of the U.S. District 3 Court for the Central District of California and any Order by this Court shall control. 4 METHOD FOR OBJECTING TO CONFIDENTIAL DESIGNATION 5 17. If any party objects to the designation of any Confidential Material as 6 CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, the objecting party may, 7 at any time, request in writing of the designating party that such designation be 8 removed. The written request shall specifically identify the precise material or 9 information at issue. 10 18. The Producing Party shall respond in writing within ten (10) business days 11 of the receipt of the written request, or within such other time as may be designated 12 by Order of the Court or agreement of the parties. If the Producing Party refuses to 13 remove the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER designation, 14 the Producing Party’s written response shall state the reasons for such refusal. 15 Notwithstanding the foregoing, failure to provide a timely written response shall be 16 deemed a refusal of the request. 17 19. If the Producing Party fails to respond to a request or refuses to remove the 18 CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER designation, the 19 objecting party shall have twenty (20) days from the date the Producing Party refuses 20 to remove the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER 21 designation (or, in the case of failure to respond, twenty (20) days from the date such 22 response would have been due) to file an appropriate motion raising the issue of 23 designation with the Court. It shall be the burden of the objecting party under such 24 circumstances to establish that the information so designated is not CONFIDENTIAL 25 – SUBJECT TO PROTECTIVE ORDER within the meaning of this Agreement. In 26 the event of such a motion, the material at issue may be submitted to the Court for an 27 in camera inspection. Until the objecting party files an appropriate motion seeking to 28 remove the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER designation 7 STIPULATED PROTECTIVE ORDER 1 and obtains relief from the court (or until the Producing Party consents to the removal 2 of the designation), the material to which the objecting party objected shall remain 3 CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER. 4 PERSONS QUALIFIED TO RECEIVE OR REVIEW CONFIDENTIAL 5 MATERIAL 6 20. Confidential Material marked “CONFIDENTIAL – SUBJECT TO 7 PROTECTIVE ORDER,” and any documents or things derived therefrom or based 8 thereon, may only be disclosed or made available to “Qualified Persons,” who are 9 defined to consist of: 10 a. The Court and employees of the Court; 11 b. Outside Counsel to the parties in this case, including clerical, secretarial 12 and paralegal staff employed by such counsel; 13 c. Deponents in their deposition or in preparing for their deposition; 14 d. Jurors or witnesses testifying at trial or in other court proceedings in this 15 16 17 18 19 20 case; e. Experts or consultants and their staff assisting in the prosecution or defense of this case; f. Parties and representatives or employees of parties (officers, directors, employees, trustees, etc.) on a need-to-know basis; g. Any person who authored or previously received the Confidential 21 Material, or who has knowledge of the specific facts identified in such 22 materials; 23 24 h. Court reporters and other persons involved in recording deposition testimony in this action by any means; 25 i. Commercial photocopying services ordinarily used by counsel for the 26 purposes of photocopying, if such services are deemed reasonably 27 necessary under the circumstances; 28 8 STIPULATED PROTECTIVE ORDER 1 j. Graphics or design services retained by counsel for a party for purposes 2 of preparing demonstrative or other exhibits for deposition, trial or other 3 court proceedings; 4 k. Jury or trial consulting services retained by counsel for a party; and 5 l. Any other person to whom the Producing Party agrees in writing or to 6 7 whom the court authorizes disclosure. 21. Prior to reviewing or receiving Confidential Material in any manner, all 8 Qualified Persons under Paragraph 20(k) hereof shall execute an undertaking in the 9 form of Exhibit B hereto. Counsel for the party providing Confidential Material to 10 such Qualified Person(s) shall maintain a complete record of every original signed 11 undertaking obtained from any person pursuant to this paragraph, and shall provide 12 the Producing Party’s counsel with a copy of such signed certificate at least thirty 13 (30) days after the conclusion of all proceedings, whether by settlement, dismissal, 14 judgment or otherwise, and after all appeals have been exhausted. In addition, if the 15 identity of outside jury consultants must be disclosed pursuant to Court order, statute 16 or otherwise, a copy of all undertakings executed by such consultants shall be 17 furnished to the Producing Party upon request. 18 22. No Confidential Material shall be disclosed to any persons other than 19 Qualified Persons. However, nothing contained herein shall (a) prevent any party 20 from disclosing or employing its own Confidential Material as it deems appropriate in 21 its sole discretion, or (b) be deemed to impose any restriction on the use or disclosure 22 by a party or witness of materials or information obtained independently of the 23 discovery proceedings in the instant matter. 24 23. In the event that any Qualified Person to whom Confidential Material is 25 disclosed ceases his or her involvement in the instant action, his or her access to 26 Confidential Material shall be terminated immediately. The provisions of this 27 Agreement shall remain in full force and effect as to any such person. 28 9 STIPULATED PROTECTIVE ORDER 24. If any Confidential Material in the possession of a Receiving Party or 1 2 Qualified Person is subpoenaed by any Court, administrative or legislative body, or 3 by any other person purporting to have authority to subpoena such materials or 4 information, upon becoming aware of the existence of the subpoena, the parties to 5 this case shall immediately give notice of the subpoena and deliver of a copy thereof 6 to the attorneys for the Producing Party. 25. Counsel for the parties shall take reasonable precautions to prevent the 7 8 unauthorized disclosure of Confidential Material. USE OF CONFIDENTIAL MATERIAL AT TRIAL 9 26. The Protective Order shall not govern the use of Confidential Material at 10 11 trial. Use of Confidential Material at trial shall be governed by orders of the trial 12 judge. 13 NO PROBATIVE VALUE 14 27. This Protective Order shall not abrogate or diminish any contractual, 15 statutory, or other legal obligation or right of any Party or person with respect to any 16 Confidential Material. The fact that information is marked with a confidentiality 17 designation under the Protective Order shall not be deemed to be determinative of 18 what a trier of fact may determine to be confidential or proprietary or a trade secret. 19 The fact that any information is disclosed, used, or produced in any court proceeding 20 in this action with a confidentiality designation shall not be offered in any action or 21 proceeding before any court, agency, or tribunal as evidence of or concerning 22 whether or not such information is admissible, confidential, or proprietary. 23 24 RIGHT TO ASSERT OTHER OBJECTIONS 28. This Protective Order shall not be construed as waiving any right to assert a 25 claim of privilege, relevance, or other grounds for not producing Discovery Material. 26 CONCLUSION OF THE LITIGATION 27 28 29. Upon the written request of the Producing Party made within sixty (60) days of the final disposition of this action, all Confidential Material, and all copies or 10 STIPULATED PROTECTIVE ORDER 1 extracts thereof, shall be returned to the Producing Party within thirty (30) days of 2 such request or, at the Producing Party’s option, shall promptly be destroyed, except 3 that depositions, deposition exhibits, discovery responses, briefs and other court 4 papers prepared for use in the instant matter need not be returned or destroyed but 5 shall be kept confidential by all counsel for the parties. 30. The binding effect of this Protective Order shall survive termination of this 6 7 action, and the Court shall retain jurisdiction to enforce the Protective Order. 31. The provisions of this Protective Order shall be effective and binding as 8 9 between the parties, counsel, and any Third Parties as of the date of the execution of 10 Exhibit “A” hereto. 32. The provisions of this Protective Order shall be effective and binding as 11 12 between the parties, counsel, and any Qualified Person as of the date of the execution 13 of Exhibit “B” hereto. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 STIPULATED PROTECTIVE ORDER SURVIVAL OF OBLIGATIONS 1 2 33. The obligations created by this Protective Order shall survive the 3 termination of this action unless otherwise modified by the Court. The Court shall 4 retain jurisdiction, even after termination of this action, to enforce this Protective 5 Order and to make such amendments and modifications to this Protective Order as 6 may be appropriate. 7 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 8 9 10 Dated: May 22, 2017 11 LUCAS & CAVALIER, LLC By: 12 13 ____________________________________ Daniel S. Strick Attorneys for Plaintiffs Richard Strick, M.D., Inc. Profit Sharing Plan and Richard Strick 14 15 16 Dated: May 22, 2017 MARKUN ZUSMAN FRENIERE & COMPTON, LLP 17 18 By: 19 20 ____________________________________ Wendy M. Thomas Attorneys for Defendant United Retirement Plan Consultants, Inc. 21 22 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 23 24 DATED: 5/22/2017 25 26 27 _____________________________________ ALEXANDER F. MacKINNON United States Magistrate Judge 28 12 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 THIRD PARTY’S AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER 3 4 5 Richard Strick, M.D., Inc. Profit Sharing Plan et al. v. United Retirement 6 Plan Consultants, Inc. 7 U.S. District Court for the Central District of California, Los Angeles Division Civil 8 Action No. CV 2:16-CV-08206-FMO-AFM 9 ___________________ is a third party to the litigation between named 10 Plaintiffs Richard Strick, M.D., Inc. Profit Sharing Plan and Richard Strick and 11 Defendant United Retirement Plan Consultants, Inc. and has received a copy of the 12 foregoing Stipulated Protective Order, and wishes to become a party thereto. 13 Pursuant to paragraph 3 of the Protective Order, _____________________ agrees to 14 15 16 be bound by the provisions of the Protective Order and ________________________ agrees to treat any Confidential Material in accordance with the terms of the Protective Order. 17 18 19 20 __________________________ (Name) Date: _________________ 21 22 23 24 25 26 27 28 13 STIPULATED PROTECTIVE ORDER 1 EXHIBIT B 2 AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER 3 Richard Strick, M.D., Inc. Profit Sharing Plan et al. v. United Retirement 4 Plan Consultants, Inc. 5 U.S. District Court for the Central District of California, Los Angeles Division Civil 6 Action No. CV 2:16-CV-08206-FMO-AFM 7 8 9 10 11 12 I, the undersigned, hereby acknowledge that I have received a copy of the foregoing Stipulated Protective Order, have read same and agree to be bound by all provisions thereof. I irrevocably submit myself to the jurisdiction of the United States District Court for the Central District of California, for enforcement of this Agreement to be Bound. I understand that if I violate the terms of the Protective Order, I may be subject to an order holding me in contempt of court. 13 14 DATED: ___________________ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 STIPULATED PROTECTIVE ORDER

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