De Nora Water Technologies, Inc. v. Karim Nesicolaci et al

Filing 55

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 52 . (See document for complete details) (afe)

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HEATHER M. VIGIL, Bar No. 254694
[e-mail]
LITTLER MENDELSON, P.C.
2050 Main Street, Suite 900
Irvine, CA 92614
Telephone: [phone]
Facsimile: 949.724.1201
ROBERT M. WOLFF, Admitted Pro Hac Vice
[e-mail]
EDWARD H. CHYUN, Admitted Pro Hac Vice
[e-mail]
INNA SHELLEY, Admitted Pro Hac Vice
[e-mail]
LITTLER MENDELSON, P.C.
1100 Superior Avenue, 20th Floor
Cleveland, OH 44114
Telephone: [phone]
Facsimile: 216.696.2038
Attorneys for Plaintiff
DE NORA WATER TECHNOLOGIES, INC.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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DE NORA WATER
TECHNOLOGIES, INC.,

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Judge: Hon. Dolly M. Gee, Ctrm. 7

Plaintiff,

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Case No. 2:16-cv-09470-DMG (ASx)

v.
KARIM NESICOLACI
DIWAN NESICOLACI
GABRIEL MACIAS
UNIVERSAL ENVIRONMENTAL
TECHNOLOGIES, INC.

STIPULATED PROTECTIVE
ORDER AND FRE 502(D) AND (E)
AGREEMENT AND ORDER

Defendants.

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1.

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As the parties have represented that discovery in this action is likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than prosecuting

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this litigation may be warranted, this Court enters the following Protective Order. This

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Order does not confer blanket protections on all disclosures or responses to discovery.

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

PURPOSES AND LIMITATIONS

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The protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles. Further, as set forth in Section 12.3, below, this Protective Order does

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not entitle the parties to file confidential information under seal. Rather, when the

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parties seek permission from the court to file material under seal, the parties must

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comply with Civil Local Rule 79-5 and with any pertinent orders of the assigned

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District Judge and Magistrate Judge.

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Further, the parties have agreed to stipulate to protect certain privileged and

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otherwise protected documents, data (including electronically stored information) and

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other information, including without limitation, metadata (collectively “Documents”),

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against claims of waiver and inadvertent production in the event they are produced

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during the course of this litigation whether pursuant to a Court Order, a discovery

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request or informal production. In order to comply with applicable discovery deadlines,

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a party may be required to produce certain categories of Documents that have been

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subject to minimal or no attorney review (the “Disclosures”). This Stipulation and

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Order is designed to foreclose any arguments that by making such Disclosures, the

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disclosure or production of Documents subject to a legally recognized claim of

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privilege, including without limitation the attorney-client privilege, work-product

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doctrine, or other applicable privilege:

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(a)

was not inadvertent by the Producing Party;

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(b)

that the Producing Party did not take reasonable steps to
prevent the disclosure of privileged Documents;

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(c)

steps to rectify such Disclosure; and/or

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

that the Producing Party did not take reasonable or timely

(d)

that such Disclosure acts as a waiver of applicable privileges
or protections associated with such Documents.

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Because the purpose of this Stipulation is to protect and preserve privileged

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Documents, the parties agree they are bound as follows from and after the date their

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counsel have signed it, even if such execution occurs prior to Court approval.

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Therefore, the Parties seek the entry of an Order, pursuant to Federal Rule of

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Civil Procedure 26(c), governing the disclosure of documents and information therein

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pertaining to “Confidential Information” or “For Counsel Only Information” on the

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terms set forth herein, as well as an Order, pursuant to FRE 502, governing the return of

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inadvertently produced documents and data and affording them the protections of FRE

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502(d) and (e), on the terms set forth herein.

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1.1

GOOD CAUSE STATEMENT

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In light of the nature of the claims and allegations in this case and the parties’

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representations that discovery in this case will involve the production of confidential

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records, and in order to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that the parties are

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permitted reasonable necessary uses of such material in connection with this action, to

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address their handling of such material at the end of the litigation, and to serve the ends

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of justice, a protective order for such information is justified in this matter. The parties

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shall not designate any information/documents as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” without a good faith belief that

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such information/documents have been maintained in a confidential, non-public

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manner, and that there is good cause why it should not be part of the public record of

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this case.

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2.

DEFINITIONS

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2.1

Action: The instant action: De Nora Water Technologies, Inc. v. Karim

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

Nesicolaci et. al., Case No. 2:16-cv-09470-DMG (ASx) (C.D. Cal. 2016).
2.2

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

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2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) containing proprietary business information,

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including trade secrets, business plans and records of internal deliberations and

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decision-making; policies and procedures not generally published, including those

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concerning business operations, employee benefits and risk management procedures;

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and individual personal information that is protected from disclosure under state or

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federal law, including identifying personal information and personal financial

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information, about any Party, any employee of any Party, or any third party or tangible

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

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specified above in the Good Cause Statement.
CONFIDENTIAL Information or Items shall also include Protected Personal
Information or Items, as set forth in paragraph 2.3.1 below.

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2.3.1 Protected Personal Information or Items: information that a party believes

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in good faith is subject to state, federal or foreign Data Protection Laws or other privacy

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obligations. Protected Personal Information or Items constitutes sensitive materials

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requiring special protection. Examples of foreign Data Protection Laws include,

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without limitation, Directive 95/46/EC of the European Parliament and of the Council

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of 24 October 1995 on the Protection of Individuals with Regard to the Processing of

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Personal Data and on the Free Movement of Such Data, 1995 O.J. (L281/31) (the “EU

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Directive”) and/or Regulation (EU) 2016/679 of the European Parliament and of the

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Council of 27 April 2016 on the Protection of Natural Persons with Regard to the

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Processing of Personal Data and on the Free Movement of Such Data, and repealing

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Directive 95/46/EC (the “General Data Protection Regulation” or “GDPR”) (L119/1);

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The United Kingdom Data Protection Act 1998 (c. 29) (“UK Personal Information”);

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the Italian Data Protection Act, Legislative Decree no. 196 of 30 June 2003 (Codice

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in materia di protezione dei dati personali, the ‘Privacy Code’) (“Italian Personal

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Information”).

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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2.4

“HIGHLY

CONFIDENTIAL-

ATTORNEYS’

EYES

ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or Items,

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the disclosure of which to another Party or Non-Party would create a substantial risk of

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serious harm that could not be avoided by less restrictive means.

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2.5

Counsel: Outside Counsel of Record and House Counsel (as well as their

support staff).
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Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.”

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Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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2.8

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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2.9

House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.

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2.11 Outside Counsel of Record: attorneys who are not employees of a party to

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this Action but are retained to represent or advise a party to this Action and have

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appeared in this Action on behalf of that party or are affiliated with a law firm which has

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

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2.12 Party: any party to this Action, including all of its officers, directors,

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

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support staffs).

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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2.13 Producing Party:

a Party or Non-Party that produces Disclosure or

Discovery Material in this Action.

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2.14 Professional Vendors: persons or entities that provide litigation support

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

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

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their employees and subcontractors.

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2.15 Protected Material:

any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --– ATTORNEYS’

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EYES ONLY.”

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2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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2.17: Documents: documents, data (including electronically stored information)

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and other information including, without limitation, metadata (collectively

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“Documents”).

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2.18: Disclosure: Produced or disclosed Documents that have been subject to
minimal or no attorney review (the “Disclosures”).

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2.19: Protected Document:

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a Document subject to a legally recognizable

privilege or evidentiary protection.

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3.

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The protections conferred by this Order cover not only Protected Material (as

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defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;

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and (3) any deposition testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material, other than during a court hearing or at

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trial. However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time of

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disclosure to a Receiving Party or becomes part of the public domain after its disclosure

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to a Receiving Party as a result of publication not involving a violation of this Order,

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

SCOPE

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including becoming part of the public record through trial or otherwise; and (b) any

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information known to the Receiving Party prior to the disclosure or obtained by the

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Receiving Party after disclosure from a source who obtained the information lawfully

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and under no obligation of confidentiality to the Designating Party.

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Any use of Protected Material during a court hearing or at trial shall be governed

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by the orders of the presiding judge. This Order does not govern the use of Protected

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Material during a court hearing or at trial.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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

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

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later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;

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and (2) final judgment herein after the completion and exhaustion of all appeals,

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rehearings, remands, trials, or reviews of this Action, including the time limits for filing

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any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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

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which protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper purpose

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(e.g., to unnecessarily encumber the case development process or to impose

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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unnecessary expenses and burdens on other parties) may expose the Designating Party

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to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated

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or ordered, Disclosure or Discovery Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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

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but excluding transcripts of depositions), that the Producing Party affix at a minimum,

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the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --– ATTORNEYS’

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EYES ONLY” to each page that contains protected material. If only a portion or

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

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

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margins).

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and before

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

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

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copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL”, or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” legend to each page that

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

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qualifies for protection, the Producing Party also must clearly identify the protected

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in depositions that the Designating Party identifies on

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the record, before the close of the deposition as protected testimony, or within 15 days

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of the receipt of notice that the deposition transcript is ready.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --– ATTORNEYS’ EYES

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ONLY.” If only a portion or portions of the information warrants protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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

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Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

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

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Order.

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6.2

Meet and Confer.

The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.
6.3

The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties shall continue to afford the material in

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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

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

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

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

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

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Party must comply with the provisions of Section 13 below.

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Protected Material must be stored and maintained by a Receiving Party at a

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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

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disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;

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

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

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

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(d) the court and its personnel;

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(e) private court reporters and their staff to whom disclosure is reasonably

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necessary for this Action and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information;

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(h) during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A); and (2) they will not be permitted to keep any confidential information

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

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

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

mutually agreed upon by any of the parties engaged in settlement discussions.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information or

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item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only

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to:

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(a) Counsel of record for the Parties, and attorneys, paralegal, clerical and other

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staff employed by such counsel who are assisting in the conduct of the Action and to

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whom it is reasonably necessary to disclose the information for this Action.

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(b) House Counsel of the Receiving Party, limited to Brent Shelley and Silvia

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Bertini, who shall sign the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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

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is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) private court reporters and their staff to whom disclosure is reasonably

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necessary for this Action and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A);

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(f) professional jury or trial consultants, mock jurors, and Professional Vendors

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

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

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information; and
(h) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions.
8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,”

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that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of this

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Protective Order; and

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” before a determination by the court from which the subpoena or order issued,

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unless the Party has obtained the Designating Party’s permission, or unless otherwise

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required by the law or court order. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material and nothing in

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these provisions should be construed as authorizing or encouraging a Receiving Party in

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this Action to disobey a lawful directive from another court.

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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a

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

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” Such information produced by

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Non-Parties in connection with this litigation is protected by the remedies and relief

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

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a Non-Party from seeking additional protections.

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

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

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subject to an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a

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Non-Party;

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(2) promptly provide the Non-Party with a copy of the Protective Order in

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this Action, the relevant discovery request(s), and a reasonably specific description of

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the information requested; and

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

(3)

make the information requested available for inspection by the

Non-Party, if requested.

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(c) If a Non-Party fails to object or seek a protective order from this Court

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within 14 days of receiving the notice and accompanying information or fails

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contemporaneously to notify the Receiving Party that it has done so, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request.

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Party shall not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court unless

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otherwise required by the law or court order. Absent a court order to the contrary, the

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

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If the Non-Party timely seeks a protective order, the Receiving

Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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Protective Order, 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

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

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whom unauthorized disclosures were made of all the terms of this Order, and (d) obtain

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the executed “Acknowledgment and Agreement to Be Bound” (Exhibit A) from such

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person or persons to whom the inadvertent disclosure was made.

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11.

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Pursuant to FRE 502(d) and (e), the Parties agree to and the Court orders

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protection of privileged and otherwise Protected Documents against claims of waiver

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(including as against third parties and in other federal and state proceedings) as follows:

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FRE 502(d) AND (e)

(a)

The disclosure or production of Documents by a Producing Party

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subject to a legally recognized claim of privilege, including without

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limitation the attorney-client privilege and the work-product

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doctrine, to a Receiving Party, shall in no way constitute the

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voluntary disclosure of such Document.

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

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(b)

The inadvertent disclosure or production of any Document in this

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Action shall not result in the waiver of any privilege, evidentiary

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protection or other protection associated with such Document as to

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the Receiving Party or any third parties, and shall not result in any

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waiver, including subject matter waiver, of any kind.

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(c)

If, during the course of this litigation, a party determines that any

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Document produced by another party is or may reasonably be

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subject to a legally recognizable privilege or evidentiary protection

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(“Protected Document”):

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(i)

the Receiving Party shall: (A) refrain from reading the

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Protected Document any more closely than is necessary to

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ascertain that it is privileged or otherwise protected from

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disclosure; (B) immediately notify the Producing Party in

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writing that it has discovered Documents believed to be

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privileged or protected; (C) specifically identify the Protected

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Documents by Bates number range or hash value, and (D)

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within ten (10) days of discovery by the Receiving Party,

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return, sequester, or destroy all copies of such Protected

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Documents, along with any notes, abstracts or compilations

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of the content thereof.

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Document has been loaded into a litigation review database

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under the control of the Receiving Party, the Receiving Party

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shall have all electronic copies of the Protected Document

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extracted from the database.

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Documents cannot be destroyed or separated, they shall not

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be reviewed, disclosed, or otherwise used by the Receiving

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Party. Notwithstanding, the Receiving Party is under no

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obligation to search or review the Producing Party’s

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

To the extent that a Protected

Where such Protected

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Documents to identify potentially privileged or work product

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Protected Documents.
(ii)

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If the Producing Party intends to assert a claim of privilege or

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other protection over Documents identified by the Receiving

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Party as Protected Documents, the Producing Party will,

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within ten (10) days of receiving the Receiving Party’s

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written notification described above, inform the Receiving

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Party of such intention in writing and shall provide the

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Receiving Party with a log for such Protected Documents that

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is consistent with the requirements of the Federal Rules of

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Civil Procedure, setting forth the basis for the claim of

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privilege or other protection. In the event that any portion of

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a Protected Document does not contain privileged or

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protected information, the Producing Party shall also provide

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to the Receiving Party a redacted copy of the document that

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omits the information that the Producing Party believes is

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subject to a claim of privilege or other protection.

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(d)

If, during the course of this litigation, a party determines it has

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produced a Protected Document:

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(i)

the Producing Party may notify the Receiving Party of such

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inadvertent production in writing, and demand the return of

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such documents. Such notice shall be in writing; however, it

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may be delivered orally on the record at a deposition,

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promptly followed up in writing. The Producing Party’s

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written notice will identify the Protected Document

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inadvertently produced by Bates number range or hash value,

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the privilege or protection claimed, and the basis for the

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assertion of the privilege and shall provide the Receiving

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

1

Party with a log for such Protected Documents that is

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consistent with the requirements of the Federal Rules of Civil

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Procedure, setting forth the basis for the claim of privilege or

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other protection.

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Protected Document does not contain privileged or protected

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information, the Producing Party shall also provide to the

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Receiving Party a redacted copy of the Document that omits

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the information that the Producing Party believes is subject to

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a claim of privilege or other protection.
(ii)

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In the event that any portion of the

The Receiving Party must, within ten (10) days of receiving

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the Producing Party’s written notification described above,

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return, sequester, or destroy the Protected Document and any

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copies, along with any notes, abstracts or compilations of the

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content thereof. To the extent that a Protected Document has

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been loaded into a litigation review database under the

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control of the Receiving Party, the Receiving Party shall have

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all electronic copies of the Protected Document extracted

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from the database.

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(e)

To the extent that the information contained in a Protected

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Document has already been used in or described in other documents

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generated or maintained by the Receiving Party prior to the date of

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receipt of written notice by the Producing Party as set forth in

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paragraphs (c)(ii) and d(i), then the Receiving Party shall sequester

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such documents until the claim has been resolved. If the Receiving

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Party disclosed the Protected Document before being notified of its

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inadvertent production, it must take reasonable steps to retrieve it.

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

(f)

The Receiving Party’s return, sequestering or destruction of
Protected Documents as provided herein will not act as a waiver of

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the Requesting Party’s right to move for the production of the

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returned, sequestered or destroyed documents on the grounds that

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the documents are not, in fact, subject to a viable claim of privilege

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or protection. However, the Receiving Party is prohibited and

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estopped from arguing that:

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(i)

the disclosure or production of the Protected Documents acts

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as a waiver of an applicable privilege or evidentiary

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protection;
(ii)

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the disclosure of the Protected Documents was not
inadvertent;

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(iii)

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the Producing Party did not take reasonable steps to prevent
the disclosure of the Protected Documents; or

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(iv)

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the Producing Party failed to take reasonable or timely steps

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to rectify the error pursuant to Federal Rule of Civil

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Procedure 26(b)(5)(B), or otherwise.

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(g)

Either party may submit Protected Documents to the Court under

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seal for a determination of the claim of privilege or other protection.

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The Producing Party shall preserve the Protected Documents until

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such claim is resolved. The Receiving Party may not use the

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Protected Documents for any purpose absent this Court’s Order.

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(h)

Upon a determination by the Court that the Protected Documents are

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protected by the applicable privilege or evidentiary protection, and

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if the Protected Documents have been sequestered rather than

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returned or destroyed by the Receiving Party, the Protected

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Documents shall be returned or destroyed within 10 (ten) days of the

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Court’s order. The Court may also order the identification by the

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Receiving Party of Protected Documents by search terms or other

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means.

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

(i)

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Nothing contained herein is intended to, or shall serve to limit a

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party’s right to conduct a review of documents, data (including

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electronically stored information) and other information, including

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without limitation, metadata, for relevance, responsiveness and/or

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the segregation of privileged and/or protected information before

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such information is produced to another party.

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(j)

specifically afforded the protections of FRE 502 (d) and (e).

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By operation of the Parties’ agreement and Court Order, the Parties are

12.

MISCELLANEOUS

12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. No Party waives any right it otherwise

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would have to object to disclosing or producing any information or item on any ground

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not addressed in this Protective Order. Similarly, no Party waives any right to object on

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

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12.3 Filing Protected Material.

A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5 and with any pertinent

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orders of the assigned District Judge and Magistrate Judge. Protected Material may

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

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Protected Material at issue. If a Party’s request to file Protected Material under seal is

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denied by the court, then the Receiving Party may file the information in the public

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record unless otherwise instructed by the court.

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13.

Data Security: If a Receiving Party or Authorized Recipient discovers

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any loss of Confidential Material or Highly Confidential Material or a breach of

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security, including any actual or suspected unauthorized access, relating to another

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party’s Confidential Material or Highly Confidential Material, the Receiving Party or

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Authorized Recipient shall: (1) promptly provide written notice to Disclosing Party of

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such breach; (2) investigate and make reasonable efforts to remediate the effects of the

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

1

breach, and provide Disclosing Party with assurances reasonably satisfactory to

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Disclosing Party that such breach shall not recur; and (3) provide sufficient information

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about the breach that the Disclosing Party can reasonably ascertain the size and scope

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of the breach. The Receiving Party or Authorized Recipient agrees to cooperate with

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the Producing Party or law enforcement in investigating any such security incident.

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In any event, the Receiving Party or Authorized Recipient shall promptly take all

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necessary and appropriate corrective action to terminate the unauthorized access.

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14.

FINAL DISPOSITION: Within 60 days after the final disposition of this

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Action, as defined in Section 4, each Receiving Party must return all Protected Material

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to the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms

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that the Receiving Party has not retained any copies, abstracts, compilations, summaries

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or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product,

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and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain

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subject to this Protective Order as set forth in Section 4.

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

15. Once executed by all Parties, the Stipulation shall be by treated by the Parties
as an Order of Court until it is formally approved by the Court.

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Dated: September 19, 2017

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/s/ Heather M. Vigil
Heahter M. Vigil
LITTLER MENDELSON, P.C.
Attorney for Plaintiff,
DE NORA WATER TECHNOLOGIES, INC.

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Dated: September 19, 2017

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/s/ Jeffrey A. Kobulnick
JEFFREY A. KOBULNICK
BRUTZKUS GRUBNER
Attorneys for Defendants/Counterclaimants
KARIM NESICOLACI, DIWAN
NESICOLACI, GABRIEL MACIAS, AND
UNIVERSAL ENVIRONMENTAL
TECHNOLOGIES, INC.

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The undersigned attests that all other signatories listed, and on whose behalf this
filing is submitted, concur in this filing’s content and have authorized this filing.

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Dated: September 19, 2017

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/s/ Heather M. Vigil
HEATHER M. VIGIL
LITTLER MENDELSON, P.C.
Attorney for Plaintiff,
DE NORA WATER TECHNOLOGIES,
INC.

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IT IS SO ORDERED.
Dated: September 26, 2017

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

/ s / Alka Sagar
Honorable Alka Sagar
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

LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600

full

name],

of

have read in its entirety and understand the Protective Order that was issued by the
United

States

District

Court

for

the

Central

District

of

California

on

_________________________ in the case of De Nora Water Technologies, Inc. v.
Karim Nesicolaci et. al., Case No. 2:16-cv-09470-DMG (ASx) (C.D. Cal. 2016). I
agree to comply with and to be bound by all the terms of this 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 Protective Order to any person or
entity except in strict compliance with the provisions of this Order.
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
Protective Order, even if such enforcement proceedings occur after termination of this
action. I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and
telephone number] as my California agent for service of process in connection with this
action or any proceedings related to enforcement of this Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________

Printed name: _______________________________

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type

_________________ [print or type full address], declare under penalty of perjury that I

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or

Signature: __________________________________

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LITTLER MENDELSON, P.C.
1100 Superior Avenue
20th Floor
Cleveland, OH 44114
216.696.7600