Arminak Solutions, LLC v. 7-Eleven, Inc et al

Filing 38

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh. SEE ORDER. (im)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 TERI T. PHAM (SBN 193383) Email: ROBERT A. RABBAT (SBN 254602) Email: ENENSTEIN RIBAKOFF LAVIÑA & PHAM 650 Town Center Drive, Suite 840 Costa Mesa, CA 92626 Phone: (310) 899-2070 Fax: (310) 496-1930 Attorneys for Plaintiff Arminak Solutions LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARMINAK SOLUTIONS, LLC, a ) California Limited Liability Company, ) ) ) Plaintiff, ) ) v. ) ) 7-ELEVEN, INC., a Texas ) Corporation; PUGS HOLDING, LLC, a Delaware Limited Liability ) Company; and DOES 1 through 20, ) ) inclusive, ) ) Defendants. ) Case No. 2:17-cv-01820-RGK (PJWx) DISCOVERY MATTER: STIPULATED PROTECTIVE ORDER Honorable Patrick J. Walsh 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1. A. PURPOSES AND LIMITATIONS Discovery in this action has involved and is likely to continue to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and ask the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. B. GOOD CAUSE STATEMENT This action is likely to involve trade secrets, proprietary business information, competitively sensitive information, or other information the disclosure of which would, in good faith judgment of the Party, or as appropriate, Non-Party, designated the material as confidential or highly confidential, be detrimental to the conduct of that Party’s or Non-Party’s business or the business of any of that Party’s or NonParty’s customers or clients including vendor/customer and pricing lists and other valuable research, development, commercial, financial, technical and/or proprietary information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Such confidential and proprietary materials and information consist of, among other things, confidential business or financial information, information regarding confidential business practices, or other confidential research, development, or commercial information (including information implicating privacy rights of third parties), information 28 STIPULATED PROTECTIVE ORDER 1 otherwise generally unavailable to the public, or which may be privileged or 2 otherwise protected from disclosure under state or federal statutes, court rules, case 3 decisions, or common law. Accordingly, to expedite the flow of information, to 4 facilitate the prompt resolution of disputes over confidentiality of discovery 5 materials, to adequately protect information the parties are entitled to keep 6 confidential, to ensure that the parties are permitted reasonable necessary uses of 7 such material in preparation for and in the conduct of trial, to address their handling 8 at the end of the litigation, and serve the ends of justice, a protective order for such 9 information is justified in this matter. It is the intent of the parties that information 10 will not be designated as confidential for tactical reasons and that nothing be so 11 designated without a good faith belief that it has been maintained in a confidential, 12 non-public manner, and there is good cause why it should not be part of the public 13 record of this case. 14 15 16 17 18 19 20 2. DEFINITIONS 2.1 Action: The pending case styled Arminak Solutions, LLC v. 7-Eleven, Inc., Pugs Holding, LLC, Case No. 2:17-cv-01820-RGK (PJWx). 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 21 how it is generated, stored or maintained) or tangible things that qualify for 22 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the 23 Good Cause Statement. 24 25 26 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 27 items that it produces in disclosures or in responses to discovery as 28 “CONFIDENTIAL.” STIPULATED PROTECTIVE ORDER 1 2.6 Disclosure or Discovery Material: all items or information, regardless of 2 the medium or manner in which it is generated, stored, or maintained (including, 3 among other things, testimony, transcripts, and tangible things), that are produced or 4 generated in disclosures or responses to discovery in this matter. 5 2.7 Expert: a person with specialized knowledge or experience in a matter 6 pertinent to the litigation who has been retained by a Party or its counsel to serve as 7 an expert witness or as a consultant in this Action. 8 9 10 11 12 2.8 House Counsel: attorneys and attorney support staff who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 13 2.10 Outside Counsel of Record: attorneys who are not employees of a party 14 to this Action but are retained to represent or advise a party to this Action and have 15 appeared in this Action on behalf of that party or are affiliated with a law firm which 16 has appeared on behalf of that party, and includes support staff. 17 2.11 Party: any party to this Action, including all of its officers, directors, 18 employees, consultants, retained experts, and Outside Counsel of Record (and their 19 support staffs). 20 21 22 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 2.13 Professional Vendors: persons or entities that provide litigation 23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 24 demonstrations, and organizing, storing, or retrieving data in any form or medium) 25 and their employees and subcontractors. 26 2.14 Protected Material: 27 28 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery STIPULATED PROTECTIVE ORDER 1 Material from a Producing Party. 2 3 3. SCOPE 4 The protections conferred by this Stipulation and Order cover not only 5 Protected Material (as defined above), but also (1) any information copied or 6 extracted from Protected Material; (2) all copies, excerpts, summaries, or 7 compilations of Protected Material; and (3) any testimony, conversations, or 8 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 9 10 trial judge. This Order does not govern the use of Protected Material at trial. 11 12 4. DURATION 13 Even after final disposition of this litigation, the confidentiality obligations 14 imposed by this Order shall remain in effect until a Designating Party agrees 15 otherwise in writing or a court order otherwise directs. Final disposition shall be 16 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 17 or without prejudice; and (2) final judgment herein after the completion and 18 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 19 including the time limits for filing any motions or applications for extension of time 20 pursuant to applicable law. 21 22 23 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 24 Each Party or Non-Party that designates information or items for protection under 25 this Order must take care to limit any such designation to specific material that 26 qualifies under the appropriate standards. The Designating Party must designate for 27 protection only those parts of material, documents, items, or oral or written 28 communications that qualify so that other portions of the material, documents, items, STIPULATED PROTECTIVE ORDER 1 or communications for which protection is not warranted are not swept unjustifiably 2 within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations 4 that are shown to be clearly unjustified or that have been made for an improper 5 purpose (e.g., to unnecessarily encumber the case development process or to impose 6 unnecessary expenses and burdens on other parties) may expose the Designating 7 Party to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it 9 designated for protection do not qualify for protection, that Designating Party must 10 11 promptly notify all other Parties that it is withdrawing the inapplicable designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in 12 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 13 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 14 under this Order must be clearly so designated before the material is disclosed or 15 produced. 16 17 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 18 documents, but excluding transcripts of depositions or other pretrial or trial 19 proceedings), that the Producing Party affix at a minimum, the legend 20 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 21 contains protected material. If only a portion or portions of the material on a page 22 qualifies for protection, the Producing Party also must clearly identify the protected 23 portion(s) (e.g., by making appropriate markings in the margins). 24 A Party or Non-Party that makes original documents available for inspection 25 need not designate them for protection until after the inspecting Party has indicated 26 which documents it would like copied and produced. During the inspection and 27 before the designation, all of the material made available for inspection shall be 28 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents STIPULATED PROTECTIVE ORDER 1 it wants copied and produced, the Producing Party must determine which documents, 2 or portions thereof, qualify for protection under this Order. Then, before producing 3 the specified documents, the Producing Party must affix the “CONFIDENTIAL 4 legend” to each page that contains Protected Material. If only a portion or portions of 5 the material on a page qualifies for protection, the Producing Party also must clearly 6 identify the protected portion(s) (e.g., by making appropriate markings in the 7 margins). 8 (b) for testimony given in depositions that the Designating Party identify 9 the Disclosure or Discovery Material on the record, before the close of the deposition 10 all protected testimony. 11 (c) for information produced in some form other than documentary and for 12 any other tangible items, that the Producing Party affix in a prominent place on the 13 exterior of the container or containers in which the information is stored the legend 14 “CONFIDENTIAL.” If only a portion or portions of the information warrants 15 protection, the Producing Party, to the extent practicable, shall identify the protected 16 portion(s). 17 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 18 failure to designate qualified information or items does not, standing alone, waive the 19 Designating Party’s right to secure protection under this Order for such material. 20 Upon timely correction of a designation, the Receiving Party must make reasonable 21 efforts to assure that the material is treated in accordance with the provisions of this 22 Order. 23 24 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 26 designation of confidentiality at any time that is consistent with the Court’s 27 Scheduling Order. 28 6.2 Meet and Confer. The Challenging Party shall initiate the dispute STIPULATED PROTECTIVE ORDER 1 resolution process under Local Rule 37.1 et seq. 6.3 2 The burden of persuasion in any such challenge proceeding shall be on 3 the Designating Party. Frivolous challenges, and those made for an improper purpose 4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 5 expose the Challenging Party to sanctions. Unless the Designating Party has waived 6 or withdrawn the confidentiality designation, all parties shall continue to afford the 7 material in question the level of protection to which it is entitled under the Producing 8 Party’s designation until the Court rules on the challenge. 9 10 11 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 12 disclosed or produced by another Party or by a Non-Party in connection with this 13 Action only for prosecuting, defending, or attempting to settle this Action. Such 14 Protected Material may be disclosed only to the categories of persons and under the 15 conditions described in this Order. When the Action has been terminated, a Receiving 16 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 17 Protected Material must be stored and maintained by a Receiving Party at a 18 location and in a secure manner that ensures that access is limited to the persons 19 authorized under this Order. 20 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 21 otherwise ordered by the court or permitted in writing by the Designating Party, a 22 Receiving 23 “CONFIDENTIAL” only to: Party may disclose any information or item designated 24 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 25 well as employees of said Outside Counsel of Record to whom it is reasonably 26 necessary to disclose the information for this Action; 27 28 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; STIPULATED PROTECTIVE ORDER 1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this Action and who have signed the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff; 6 (f) professional jury or trial consultants, mock jurors, and Professional 7 Vendors to whom disclosure is reasonably necessary for this Action and who have 8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 9 10 custodian or other person who otherwise possessed or knew the information; 11 (h) during their depositions, witnesses, and attorneys for witnesses, in the 12 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 13 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 14 not be permitted to keep any confidential information unless they sign the 15 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 16 agreed by the Designating Party or ordered by the court. Pages of transcribed 17 deposition testimony or exhibits to depositions that reveal Protected Material may be 18 separately bound by the court reporter and may not be disclosed to anyone except as 19 permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 20 21 mutually agreed upon by any of the parties engaged in settlement discussions. 22 23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 24 OTHER LITIGATION 25 If a Party is served with a subpoena or a court order issued in other litigation 26 that compels disclosure of any information or items designated in this Action as 27 “CONFIDENTIAL,” that Party must: 28 (a) promptly notify in writing the Designating Party. Such notification STIPULATED PROTECTIVE ORDER 1 shall include a copy of the subpoena or court order; 2 (b) promptly notify in writing the party who caused the subpoena or order 3 to issue in the other litigation that some or all of the material covered by the subpoena 4 or order is subject to this Protective Order. Such notification shall include a copy of 5 this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 6 7 pursued by the Designating Party whose Protected Material may be affected. 8 If the Designating Party timely seeks a protective order, the Party served with 9 the subpoena or court order shall not produce any information designated in this 10 action as “CONFIDENTIAL” before a determination by the court from which the 11 subpoena or order issued, unless the Party has obtained the Designating Party’s 12 permission. The Designating Party shall bear the burden and expense of seeking 13 protection in that court of its confidential material and nothing in these provisions 14 should be construed as authorizing or encouraging a Receiving Party in this Action to 15 disobey a lawful directive from another court. 16 17 9. A NON-PARTY’S PROTECTED 18 MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 19 (a) The terms of this Order are applicable to information produced by a 20 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 21 produced by Non-Parties in connection with this litigation is protected by the 22 remedies and relief provided by this Order. Nothing in these provisions should be 23 construed as prohibiting a Non-Party from seeking additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to 25 produce a Non-Party’s confidential information in its possession, and the Party is 26 subject to an agreement with the Non-Party not to produce the Non-Party’s 27 confidential information, then the Party shall: 28 (1) promptly notify in writing the Requesting Party and the Non-Party STIPULATED PROTECTIVE ORDER 1 that some or all of the information requested is subject to a confidentiality agreement 2 with a Non-Party; 3 (2) promptly provide the Non-Party with a copy of the Stipulated 4 Protective Order in this Action, the relevant discovery request(s), and a reasonably 5 specific description of the information requested; and (3) make the information requested available for inspection by the 6 7 Non-Party, if requested. 8 (c) If the Non-Party fails to seek a protective order from this court within 9 14 days of receiving the notice and accompanying information, the Receiving Party 10 may produce the Non-Party’s confidential information responsive to the discovery 11 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 12 not produce any information in its possession or control that is subject to the 13 confidentiality agreement with the Non-Party before a determination by the court. 14 Absent a court order to the contrary, the Non-Party shall bear the burden and expense 15 of seeking protection in this court of its Protected Material. 16 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 21 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 22 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 23 persons to whom unauthorized disclosures were made of all the terms of this Order, 24 and (d) request such person or persons to execute the “Acknowledgment and 25 Agreement to Be Bound” that is attached hereto as Exhibit A. 26 27 28 STIPULATED PROTECTIVE ORDER 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 7 may be established in an e-discovery order that provides for production without prior 8 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 9 parties reach an agreement on the effect of disclosure of a communication or 10 information covered by the attorney-client privilege or work product protection, the 11 parties may incorporate their agreement in the stipulated protective order submitted 12 to the court. 13 14 15 16 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. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this 18 Protective Order no Party waives any right it otherwise would have to object to 19 disclosing or producing any information or item on any ground not addressed in this 20 Stipulated Protective Order. Similarly, no Party waives any right to object on any 21 ground to use in evidence of any of the material covered by this Protective Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 24 only be filed under seal pursuant to a court order authorizing the sealing of the 25 specific Protected Material at issue. If a Party's request to file Protected Material 26 under seal is denied by the court, then the Receiving Party may file the information in 27 the public record unless otherwise instructed by the court. 28 STIPULATED PROTECTIVE ORDER 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 3 days of a written request by the Designating Party, each Receiving Party must return 4 all Protected Material to the Producing Party or destroy such material. As used in this 5 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving 8 Party must submit a written certification to the Producing Party (and, if not the same 9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 10 (by category, where appropriate) all the Protected Material that was returned or 11 destroyed and (2)affirms that the Receiving Party has not retained any copies, 12 abstracts, compilations, summaries or any other format reproducing or capturing any 13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 16 reports, attorney work product, and consultant and expert work product, even if such 17 materials contain Protected Material. Any such archival copies that contain or 18 constitute Protected Material remain subject to this Protective Order as set forth in 19 Section 4 (DURATION). 20 14. 21 measures including, without limitation, contempt proceedings and/or monetary 22 sanctions. Any violation of this Order may be punished by any and all appropriate 23 24 /// 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: ________ ENENSTEIN RIBAKOFF LAVIÑA & PHAM 4 5 By: 6 7 TERI T. PHAM ROBERT A. RABBAT Attorneys for Plaintiff ARMINAK SOLUTIONS, LLC 8 9 DATED: ________ CALL & JENSEN 10 11 By: 12 13 JULIE R. TROTTER SCOTT SHAW Attorneys for Defendants 7-ELEVEN, INC., and PUGS HOLDING, LLC 14 15 16 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 17 18 DATED: June 12, 2017 19 ______________________________ Honorable Patrick J. Walsh 21 United States Magistrate Judge 20 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of __________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California on [date] in the case of Arminak Solutions, LLC v. 7-Eleven, Inc., Pugs Holding, LLC, Case No. 2:17-cv-01820-RGK (PJWx). I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further understand that I am to retain all copies of all Protected Material provided to me in the Proceeding in a secure manner, and that all copies of such Protected Material are to remain in my personal custody until termination of my participation in this Action, whereupon the copies of such Protected Material will be returned to counsel who provided me with such Protected Material. I agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. 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 Stipulated Protective Order. Date: __________________________________ City and State where sworn and signed: ___________________________________ Printed name: ___________________________ Signature: ______________________________

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