The Sales Group, Inc. v. Relm Wireless Corp.

Filing 53

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 51 (see attached) (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 THE SALES GROUP, INC., a
California Corporation,,
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Plaintiff,
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vs.
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RELM WIRELESS CORP., a Florida
16 Corporation,

CASE No. 2:17-cv-02347-JAK-FFM
STIPULATED PROTECTIVE
ORDER

Defendant.

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1.

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Discovery in this action is likely to involve production of confidential,

PURPOSES AND LIMITATIONS

21 proprietary or private information for which special protection from public
22 disclosure and from use for any purpose other than prosecuting this litigation may
23 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
24 enter the following Stipulated Protective Order. The parties acknowledge that this
25 Order does not confer blanket protections on all disclosures or responses to
26 discovery and that the protection it affords from public disclosure and use extends
27 only to the limited information or items that are entitled to confidential treatment
28 under the applicable legal principles.
1069842.1

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2.

GOOD CAUSE STATEMENT

2

This action is likely to involve trade secrets, customer and pricing lists and

3 other valuable research, development, commercial, financial, technical and/or
4 proprietary information for which special protection from public disclosure and
5 from use for any purpose other than prosecution of this action is warranted. Such
6 confidential and proprietary materials and information consist of, among other
7 things, confidential business or financial information, information regarding
8 confidential business practices, or other confidential research, development, or
9 commercial information, information otherwise generally unavailable to the public,
10 or which may be privileged or otherwise protected from disclosure under state or
11 federal statutes, court rules, case decisions, or common law. Accordingly, to
12 expedite the flow of information, to facilitate the prompt resolution of disputes over
13 confidentiality of discovery materials, to adequately protect information the parties
14 are entitled to keep confidential, to ensure that the parties are permitted reasonable
15 necessary uses of such material in preparation for and in the conduct of trial, to
16 address their handling at the end of the litigation, and serve the ends of justice, a
17 protective order for such information is justified in this matter. It is the intent of the
18 parties that information will not be designated as confidential for tactical reasons
19 and that nothing be so designated without a good faith belief that it has been
20 maintained in a confidential, non-public manner, and there is good cause why it
21 should not be part of the public record of this case.
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3.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

23 SEAL
24

The parties further acknowledge, as set forth in Section 12.3, below, that this

25 Stipulated Protective Order does not entitle them to file confidential information
26 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
27 and the standards that will be applied when a party seeks permission from the court
28 to file material under seal.
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1

There is a strong presumption that the public has a right of access to judicial

2 proceedings and records in civil cases. In connection with non-dispositive motions,
3 good cause must be shown to support a filing under seal. See Kamakana v. City and
4 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
5 Corp,, 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
6 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
7 require good cause showing), and a specific showing of good cause or compelling
8 reasons with proper evidentiary support and legal justification, must be made with
9 respect to Protected Material that a party seeks to file under seal. The parties' mere
10 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
11 without the submission of competent evidence by declaration, establishing that the
12 material sought to be filed under seal qualifies as confidential, privileged, or
13 otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial, then

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15 compelling reasons, not only good cause, for the sealing must be shown, and the
16 relief sought shall be narrowly tailored to serve the specific interest to be protected.
17 See Pintos v. Pacific Creditors Ass'n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
18 each item or type of information, document, or thing sought to be filed or introduced
19 under seal in connection with a dispositive motion or trial, the party seeking
20 protection must articulate compelling reasons, supported by specific facts and legal
21 justification, for the requested sealing order. Again, competent evidence supporting
22 the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in

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24 its entirety will not be filed under seal if the confidential portions can be redacted.
25 If documents can be redacted, then a redacted version for public viewing, omitting
26 only the confidential, privileged, or otherwise protectable portions of the document,
27 shall be filed. Any application that seeks to file documents under seal in their
28 entirety should include an explanation of why redaction is not feasible.
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4.

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DEFINITIONS
4.1

Action: this pending federal lawsuit, The Sales Group, Inc. v.

3 Relm Wireless Corp., Case No. 2:17-cv-02347-JAK-FFM.
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4.2

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

5 designation of information or items under this Order.
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4.3

"CONFIDENTIAL" Information or Items: information

7 (regardless of how it is generated, stored or maintained) or tangible things that
8 qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified
9 above in the Good Cause Statement.
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4.4

Counsel: Outside Counsel of Record and House Counsel (as

11 well as their support staff).
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4.5

Designating Party: a Party or Non-Party that designates

13 information or items that it produces in disclosures or in responses to discovery as
14 "CONFIDENTIAL."
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4.6

Disclosure or Discovery Material: all items or information,

16 regardless of the medium or manner in which it is generated, stored, or maintained
17 (including, among other things, testimony, transcripts, and tangible things), that are
18 produced or generated in disclosures or responses to discovery in this matter.
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4.7

Expert: a person with specialized knowledge or experience in a

20 matter pertinent to the litigation who has been retained by a Party or its counsel to
21 serve as an expert witness or as a consultant in this Action.
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4.8

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

23 Action. House Counsel does not include Outside Counsel of Record or any other
24 outside counsel.
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4.9

Non-Party: any natural person, partnership, corporation,

26 association or other legal entity not named as a Party to this action.
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4.10 Outside Counsel of Record: attorneys who are not employees of

28 a party to this Action but are retained to represent or advise a party to this Action
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1 and have appeared in this Action on behalf of that party or are affiliated with a law
2 firm that has appeared on behalf of that party, and includes support staff.
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4.11 Party: any party to this Action, including all of its officers,

4 directors, employees, consultants, retained experts, and Outside Counsel of Record
5 (and their support staffs).
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4.12 Producing Party: a Party or Non-Party that produces Disclosure

7 or Discovery Material in this Action.
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4.13 Professional Vendors: persons or entities that provide litigation

9 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
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4.14 Protected Material: any Disclosure or Discovery Material that is

13 designated as "CONFIDENTIAL."
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4.15 Receiving Party: a Party that receives Disclosure or Discovery

15 Material from a Producing Party.
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5.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

18 Protected Material (as defined above), but also (1) any information copied or
19 extracted from Protected Material; (2) all copies, excerpts, summaries, or
20 compilations of Protected Material; and (3) any testimony, conversations, or
21 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

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23 trial judge. This Order does not govern the use of Protected Material at trial.
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6.

DURATION

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Once a case proceeds to trial, information that was designated as

26 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
27 as an exhibit at trial becomes public and will be presumptively available to all
28 members of the public, including the press, unless compelling reasons supported by
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1 specific factual findings to proceed otherwise are made to the trial judge in advance
2 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing "good cause"
3 showing for sealing documents produced in discovery from "compelling reasons"
4 standard when merits-related documents are part of court record). Accordingly, the
5 terms of this protective order do not extend beyond the commencement of the trial.
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7.

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DESIGNATING PROTECTED MATERIAL
7.1

Exercise of Restraint and Care in Designating Material for

8 Protection. Each Party or Non-Party that designates information or items for
9 protection under this Order must take care to limit any such designation to specific
10 material that qualifies under the appropriate standards. The Designating Party must
11 designate for protection only those parts of material, documents, items or oral or
12 written communications that qualify so that other portions of the material,
13 documents, items or communications for which protection is not warranted are not
14 swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate or routinized designations are prohibited. Designations

16 that are shown to be clearly unjustified or that have been made for an improper
17 purpose (e.g., to unnecessarily encumber the case development process or to impose
18 unnecessary expenses and burdens on other parties) may expose the Designating
19 Party to sanctions.
If it comes to a Designating Party's attention that information or items that it

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21 designated for protection do not qualify for protection, that Designating Party must
22 promptly notify all other Parties that it is withdrawing the inapplicable designation.
7.2

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Manner and Timing of Designations. Except as otherwise

24 provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as
25 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
26 protection under this Order must be clearly so designated before the material is
27 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

3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 "CONFIDENTIAL" (hereinafter "CONFIDENTIAL legend"), to each page that
6 contains protected material. If only a portion of the material on a page qualifies for
7 protection, the Producing Party also must clearly identify the protected portion(s)
8 (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection

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10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed "CONFIDENTIAL." After the inspecting Party has identified the
14 documents it wants copied and produced, the Producing Party must determine which
15 documents, or portions thereof, qualify for protection under this Order. Then,
16 before producing the specified documents, the Producing Party must affix the
17 "CONFIDENTIAL legend" to each page that contains Protected Material. If only a
18 portion of the material on a page qualifies for protection, the Producing Party also
19 must clearly identify the protected portion(s) (e.g., by making appropriate markings
20 in the margins).
(b)

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for testimony given in depositions that the Designating Party identifies

22 the Disclosure or Discovery Material on the record, before the close of the
23 deposition all protected testimony.
(c)

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for information produced in some form other than documentary and for

25 any other tangible items, that the Producing Party affix in a prominent place on the
26 exterior of the container or containers in which the information is stored the legend
27 "CONFIDENTIAL." If only a portion or portions of the information warrants
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1 protection, the Producing Party, to the extent practicable, shall identify the protected
2 portion(s).
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7.3

Inadvertent Failures to Designate. If timely corrected, an

4 inadvertent failure to designate qualified information or items does not, standing
5 alone, waive the Designating Party's right to secure protection under this Order for
6 such material. Upon timely correction of a designation, the Receiving Party must
7 make reasonable efforts to assure that the material is treated in accordance with the
8 provisions of this Order.
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8.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
8.1

Timing of Challenges. Any Party or Non-Party may challenge a

11 designation of confidentiality at any time that is consistent with the Court's
12 Scheduling Order.
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8.2

Meet and Confer. The Challenging Party shall initiate the

14 dispute resolution process under Local Rule 37-1 et seq.
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8.3

Joint Stipulation. Any challenge submitted to the Court shall be

16 via a joint stipulation pursuant to Local Rule 37-2.
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8.4

The burden of persuasion in any such challenge proceeding shall

18 be on the Designating Party. Frivolous challenges, and those made for an improper
19 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
20 parties) may expose the Challenging Party to sanctions. Unless the Designating
21 Party has waived or withdrawn the confidentiality designation, all parties shall
22 continue to afford the material in question the level of protection to which it is
23 entitled under the Producing Party's designation until the Court rules on the
24 challenge.
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9.

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ACCESS TO AND USE OF PROTECTED MATERIAL
9.1

Basic Principles. A Receiving Party may use Protected Material

27 that is disclosed or produced by another Party or by a Non-Party in connection with
28 this Action only for prosecuting, defending or attempting to settle this Action. Such
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1 Protected Material may be disclosed only to the categories of persons and under the
2 conditions described in this Order. When the Action has been terminated, a
3 Receiving Party must comply with the provisions of section 13 below (FINAL
4 DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

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6 location and in a secure manner that ensures that access is limited to the persons
7 authorized under this Order.
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9.2

Disclosure of "CONFIDENTIAL" Information or Items. Unless

9 otherwise ordered by the court or permitted in writing by the Designating Party, a
10 Receiving Party may disclose any information or item designated
11 "CONFIDENTIAL" only to:
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(a)

the Receiving Party's Outside Counsel of Record in this Action, as well

13 as employees of said Outside Counsel of Record to whom it is reasonably necessary
14 to disclose the information for this Action;
(b)

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the officers, directors, and employees (including House Counsel) of the

16 Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

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

18 disclosure is reasonably necessary for this Action and who have signed the
19 "Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

23 Vendors to whom disclosure is reasonably necessary for this Action and who have
24 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(g)

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the author or recipient of a document containing the information or a

26 custodian or other person who otherwise possessed or knew the information;
(h)

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during their depositions, witnesses, and attorneys for witnesses, in the

28 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
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1 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
2 not be permitted to keep any confidential information unless they sign the
3 "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise
4 agreed by the Designating Party or ordered by the court. Pages of transcribed
5 deposition testimony or exhibits to depositions that reveal Protected Material may
6 be separately bound by the court reporter and may not be disclosed to anyone except
7 as permitted under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting personnel,

9 mutually agreed upon by any of the parties engaged in settlement discussions.
10

10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

11 PRODUCED IN OTHER LITIGATION
12

If a Party is served with a subpoena or a court order issued in other litigation

13 that compels disclosure of any information or items designated in this Action as
14 "CONFIDENTIAL," that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification

16 shall include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena or order

18 to issue in the other litigation that some or all of the material covered by the
19 subpoena or order is subject to this Protective Order. Such notification shall include
20 a copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be

22 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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24 the subpoena or court order shall not produce any information designated in this
25 action as "CONFIDENTIAL" before a determination by the court from which the
26 subpoena or order issued, unless the Party has obtained the Designating Party's
27 permission. The Designating Party shall bear the burden and expense of seeking
28 protection in that court of its confidential material and nothing in these provisions
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1 should be construed as authorizing or encouraging a Receiving Party in this Action
2 to disobey a lawful directive from another court.
3

11.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE

4 PRODUCED IN THIS LITIGATION
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(a)

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

6 Non-Party in this Action and designated as "CONFIDENTIAL." Such information
7 produced by Non-Parties in connection with this litigation is protected by the
8 remedies and relief provided by this Order. Nothing in these provisions should be
9 construed as prohibiting a Non-Party from seeking additional protections.
(b)

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

11 produce a Non-Party's confidential information in its possession, and the Party is
12 subject to an agreement with the Non-Party not to produce the Non-Party's
13 confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the Non-Party that

15 some or all of the information requested is subject to a confidentiality agreement
16 with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the Stipulated

18 Protective Order in this Action, the relevant discovery request(s), and a reasonably
19 specific description of the information requested; and
(3)

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make the information requested available for inspection by the Non-

21 Party, if requested.
(c)

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If the Non-Party fails to seek a protective order from this court within

23 14 days of receiving the notice and accompanying information, the Receiving Party
24 may produce the Non-Party's confidential information responsive to the discovery
25 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
26 not produce any information in its possession or control that is subject to the
27 confidentiality agreement with the Non-Party before a determination by the court.
28 / / /
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1 Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

4

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

5 Protected Material to any person or in any circumstance not authorized under this
6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
9 persons to whom unauthorized disclosures were made of all the terms of this Order,
10 and (d) request such person or persons to execute the "Acknowledgment and
11 Agreement to Be Bound" that is attached hereto as Exhibit A.
12

13.

INADVERTENT PRODUCTION OF PRIVILEGED OR

13 OTHERWISE PROTECTED MATERIAL
14

When a Producing Party gives notice to Receiving Parties that certain

15 inadvertently produced material is subject to a claim of privilege or other protection,
16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
18 procedure may be established in an e-discovery order that provides for production
19 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
20 (e), insofar as the parties reach an agreement on the effect of disclosure of a
21 communication or information covered by the attorney-client privilege or work
22 product protection, the parties may incorporate their agreement in the stipulated
23 protective order submitted to the court.
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14.

25

MISCELLANEOUS
14.1 Right to Further Relief. Nothing in this Order abridges the right

26 of any person to seek its modification by the Court in the future.
27

14.2 Right to Assert Other Objections. By stipulating to the entry of

28 this Protective Order, no Party waives any right it otherwise would have to object to
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1 disclosing or producing any information or item on any ground not addressed in this
2 Stipulated Protective Order. Similarly, no Party waives any right to object on any
3 ground to use in evidence of any of the material covered by this Protective Order.
4

14.3 Filing Protected Material. A Party that seeks to file under seal

5 any Protected Material must comply with Local Civil Rule 79-5. Protected Material
6 may only be filed under seal pursuant to a court order authorizing the sealing of the
7 specific Protected Material at issue. If a Party's request to file Protected Material
8 under seal is denied by the court, then the Receiving Party may file the information
9 in the public record unless otherwise instructed by the court.
10

15.

FINAL DISPOSITION

11

After the final disposition of this Action, as defined in paragraph 4, within 60

12 days of a written request by the Designating Party, each Receiving Party must return
13 all Protected Material to the Producing Party or destroy such material. As used in
14 this subdivision, "all Protected Material" includes all copies, abstracts, compilations,
15 summaries, and any other format reproducing or capturing any of the Protected
16 Material. Whether the Protected Material is returned or destroyed, the Receiving
17 Party must submit a written certification to the Producing Party (and, if not the same
18 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
19 (by category, where appropriate) all the Protected Material that was returned or
20 destroyed and (2) affirms that the Receiving Party has not retained any copies,
21 abstracts, compilations, summaries or any other format reproducing or capturing any
22 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
23 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
24 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
25 reports, attorney work product, and consultant and expert work product, even if such
26 materials contain Protected Material. Any such archival copies that contain or
27 constitute Protected Material remain subject to this Protective Order as set forth in
28 Section 4 (DURATION).
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1

16.

VIOLATION

2

Any violation of this Order may be punished by appropriate measures

3 including, without limitation, contempt proceedings and/or monetary sanctions.
4
5

IT IS SO ORDERED.

6
7 Dated: October 6, 2017
8

/S/ FREDERICK F. MUMM
Honorable Frederick F. Mumm
United States Magistrate Judge

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1
EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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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 ______________________ The Sales
Group, Inc. v. Relm Wireless Corp., Case No. 2:17-cv-02347-JAK-FFM. 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

12 in any manner any information or item that is subject to this Stipulated Protective Order
13 to any person or entity except in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 Central District of California for enforcing the terms of this Stipulated Protective Order,
16 even if such enforcement proceedings occur after termination of this action.
17 I hereby appoint __________________________ [print or type full name] of
18 ____________________________________ [print or type full address and telephone
19 number] as my California agent for service of process in connection with this action or
20 any proceedings related to enforcement of this Stipulated Protective Order.
21 Date:
22 City and State where sworn and signed:
23
24 Printed name:
25 Signature:
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