James Gencarelli v. Chernin Entertainment, LLC et al

Filing 99

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich: GRANTED. (see document for further details) 98 (klg)

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JAMES GENCARELLI (PRO-SE)
2185 Lemoine Ave
Fort Lee, New Jersey 07024
201.951.0926 / 201.242.9425
E-mail: [e-mail]
MARTHA S. DOTY (SBN 143287)
CASONDRA K. RUGA (SBN 237597)
LISA GARCIA (SBN 301362)
ALSTON & BIRD LLP
333 South Hope Street, Sixteenth Floor
Los Angeles, California 90071
Telephone: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants TWENTIETH
CENTURY FOX FILM CORPORATION
and CHERNIN ENTERTAINMENT, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:17-CV-02818-ODW (AJW)

JAMES GENCARELLI,

Assigned to the Hon. Otis D. Wright, II –

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Courtroom 5D

Plaintiff,

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v.
PROTECTIVE ORDER
20TH CENTURY-FOX FILM
CORPORATION JIM GIANOPULOS,
CEO (Individually) CHERNIN
ENTERTAINMENT, LLC PETER
CHERNIN, CEO (Individually) JENNO
TOPPING (Individual) ET AL,

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Defendants.

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STIPULATED PROTECTIVE ORDER

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It is stipulated and agreed by and between counsel for the parties that the

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terms and conditions of this Stipulated Protective Order (“Order”) shall govern the

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handling of documents, answers to interrogatories, depositions, pleadings, exhibits,

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and all other information exchanged by the parties in this action. Disclosure and

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discovery activity in this action may involve the production of confidential,

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting, defending, or

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resolving this litigation is warranted. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures, productions, or responses to

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discovery and that the protection it affords extends only to the limited information or

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items that are entitled under applicable legal principles to treatment as confidential.

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The parties further acknowledge that this Order creates no entitlement to file

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confidential information under seal; Federal Civil Local Rule 79-5 and the local rules

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of the District Court judge set forth the standards to be followed when a party seeks

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to file material under seal.

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It is ORDERED as follows:

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1.

This Order shall govern all items or information, regardless of

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the medium or manner in which they are generated, stored, or maintained

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(including, among other things, testimony, transcripts, tangible things, and

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intangible things including, but not limited to musical tracks, soundtracks and/or

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other recordings), that are produced or generated in disclosures or in response to

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discovery in this litigation (“Discovery Materials”).

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2.

Any party to this litigation shall have the right to designate

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Discovery Materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”

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pursuant to the terms of this Order.

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” will be referred to as

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“Designated Materials.”

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subpoena or otherwise may designate Discovery Materials pursuant to this Order

Discovery Materials designated

Any third party producing documents pursuant to a

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STIPULATED PROTECTIVE ORDER

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only if an authorized representative of the producing third party executes a

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written acknowledgment, substantially in the form of Exhibit 1 annexed to this

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Order, that the non-party has reviewed a copy of this Order, will comply with its

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terms, and will submit to adjudication by the District Court of any dispute

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regarding that third-party’s designations under this Order, enforceable by and

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subject to the jurisdiction of the District Court as may be necessary.

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a.

All designations must be made in good faith and on

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reasonable belief that the information or item being designated accurately

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meets the definition of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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b.

A party or non-party that designates Discovery Materials

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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (“Designating

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Party”) must designate for protection, where practicable, only those parts

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of the material, documents, items, or communications that qualify so that

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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

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ambit of this Order.

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c.

Except as otherwise provided in this Order, e.g., with

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respect to deposition testimony as provided in Section 9(b) below, or as

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otherwise stipulated or ordered, disclosure of Discovery Materials that

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qualify for protection under this Order must be clearly so designated

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before being disclosed or produced.

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soundtracks and/or other recordings which are not tangible, the

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Designating Party will indicate the designation in a separate writing before

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being disclosed or produced.

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d.

In the case of musical tracks,

Materials marked “CONFIDENTIAL” shall be non-

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public Discovery Materials that the “Designating Party” in good faith

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believes qualify for protection under Rule 26(c) of the Federal Rules of

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Civil Procedure, including, but not limited to, musical tracks, soundtracks,
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STIPULATED PROTECTIVE ORDER

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scores, and/or other recordings, trade secrets or other confidential research,

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development, or commercial information.
e.

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Materials marked “HIGHLY CONFIDENTIAL” shall be

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highly sensitive non-public Discovery Materials, disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm

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to the Designating Party’s competitive position or otherwise reveal

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internal business or strategic information whose disclosure could prejudice

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the Designating Party, including, but not limited to, musical tracks,

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soundtracks, scores, and/or other recordings, trade secrets or other

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confidential research, development, or commercial information.
3.

The party that receives Discovery Materials or Designated

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Materials (“Receiving Party”) shall use the Discovery Materials or Designated

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Materials solely for purposes of this litigation between the parties, but not for

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any other purpose whatsoever (including that such materials may not be

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disseminated to the media or general public).

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4.

Unless otherwise ordered by the District Court or permitted in

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writing by the Designating Party, the Receiving Party may disclose materials

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marked “CONFIDENTIAL” only to:

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a.

any individual who is a party; any officer, director, or

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employee (including in-house counsel) of a party; or any former officer,

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director, or employee of a party to whom it is deemed reasonably

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necessary that the Designated Materials be shown for purposes of the

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litigation and who has executed the “Acknowledgement and Agreement to

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Be Bound” (Exhibit 1) before being provided the Designated Materials;

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b.

the Receiving Party’s outside counsel, and employees of

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and independent contractors for outside counsel that are engaged in work

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for such counsel necessary to assist in this litigation. The term “outside

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counsel” shall mean the attorneys and their firms who have entered an
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STIPULATED PROTECTIVE ORDER

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appearance in this case;
c.

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persons retained by a party or its counsel to serve as an

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expert witness or a consultant in this litigation to whom disclosure is

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reasonably necessary for this litigation and who have executed the

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“Acknowledgement and Agreement to Be Bound” (Exhibit 1) before being

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provided the Designated Materials;
d.

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witnesses in the course of deposition where counsel has a

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reasonable and good faith belief that examination with respect to the

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Designated Materials is necessary, and any person being prepared to

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testify where counsel has a reasonable and good faith belief that such person

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will be a witness in this action and that his examination with respect to the

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Designated Materials is necessary in connection with such testimony;

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persons to whom Designated Materials are disclosed pursuant to this

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subparagraph

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Designated Materials;
e.

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may

not

be

permitted

to

retain

copies

of

the

any authorized representative of an insurer or other person

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providing or potentially providing indemnity with regard to the litigation,

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provided that any such person shall be advised that they are subject to the

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terms of this Order before being provided Designated Materials;
f.

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custodian

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the information contained or reflected in the Designated Materials;

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or

the author or recipient of the Designated Materials or a

g.

other

person

who

otherwise

possessed

or

knew

court reporters and their staff, persons preparing

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transcripts of depositions, professional trial consultants, and professional

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vendors to whom disclosure is reasonably necessary for this litigation and

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who have executed the “Acknowledgement and Agreement to Be Bound”

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(Exhibit 1) before being provided the Designated Materials; and

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h.

the District Court and its personnel.
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STIPULATED PROTECTIVE ORDER

5.

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Unless otherwise ordered by the District Court or permitted in

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writing by the Designating Party, the Receiving Party may disclose materials

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marked “HIGHLY CONFIDENTIAL” only to:
a.

Individuals described in Paragraphs 4(b)-(c), (e)-(h)

b.

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Designated in-house counsel (or their staff) of the

above; and

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Receiving Party (1) who has no involvement in competitive decision-

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making, (2) to whom disclosure is reasonably necessary for this litigation,

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and (3) who has executed the “Acknowledgment and Agreement to Be
Bound” (Exhibit 1).

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Persons who are authorized to review Designated Materials

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shall hold such materials in confidence and shall not disclose their

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contents, either verbally or in writing, to any person not otherwise

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authorized to receive such information under this Order, or otherwise

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required by law. Copies of Designated Materials shall be made only to the

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extent necessary to facilitate permitted use under this Order.
6.

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The recipient of Designated Materials provided under this

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Order shall maintain such information in a secure and safe area and shall

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exercise the same standard of due and proper care with respect to the storage,

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custody, use or dissemination of such information as is exercised by the

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recipient with respect to its own proprietary information. Designated Materials

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shall not be copied, reproduced, summarized or abstracted, except to the extent

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that such copying, reproduction, summary or abstraction is reasonably necessary

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for purposes related to this lawsuit. All such copies, reproductions, summaries,

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extractions, and abstractions shall be subject to the terms of this Order, and

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labeled in the same manner as the Designated Materials on which they are

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based.

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STIPULATED PROTECTIVE ORDER

7.

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In the event a party deems it necessary or appropriate to

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disclose any Designated Materials to any person not specified in Paragraphs 4 or

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5, that party shall notify counsel for the Designating Party in writing of: (i) the

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Designated Materials it wishes to disclose, and (ii) the person or persons to

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whom such disclosure is to be made. The proposed disclosure shall not be made

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absent written permission of the Designating Party, unless the party wishing to

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make the proposed disclosure obtains an order from the District Court

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permitting the proposed disclosure. Counsel shall obtain from all persons to

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whom disclosures are made pursuant to this Paragraph 8 a written

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acknowledgement, substantially in the form of Exhibit 1 attached hereto, that

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such person or persons have reviewed a copy of this Order, will comply with its

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terms in all respects enforceable by and subject to the jurisdiction of the District

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Court.
8.

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In the event of any inadvertent disclosure of attorney-client

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privileged information or information subject to the attorney work product

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doctrine or any other privilege, the party making such inadvertent disclosure,

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after learning of such inadvertent disclosure, shall immediately notify the party

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to whom the inadvertent disclosure was made; the obligations of the Receiving

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Party are those set forth in Rule 26(b)(5)(B) of the Federal Rules of Civil

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Procedure.

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9.

The Designating Party shall designate Discovery Materials

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” as follows:
a.

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for information in documentary form (e.g., paper or

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electronic

documents,

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designation

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” on each page that

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contains protected material prior to production; if only a portion or

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portions of the material on a page qualifies for protection, the Designating

shall

be

but
made

excluding
by

transcripts

placing

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STIPULATED PROTECTIVE ORDER

the

of

depositions),

following

legend

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins);
b.

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for testimony given in deposition, designation of the

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portion of the transcript (including exhibits) as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” shall be made by a statement to such effect

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on the record in the course of the deposition or, upon review of such

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transcript, by counsel for the party to whose protected material the

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deponent has had access. If a portion of a deposition is designated as

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“CONFIDENTIAL”

or

“HIGHLY

CONFIDENTIAL”

before

the

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deposition is transcribed, the transcript containing or reflecting protected

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materials shall be bound in a separate volume marked “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL” as appropriate. If a portion of a

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deposition

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CONFIDENTIAL” during the course of a deposition, counsel may request

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all persons, except persons entitled to receive Designated Materials

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pursuant to this Order, to leave the room while the deposition is

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proceeding until completion of the answer or answers containing protected

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materials.

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” after the deposition

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is transcribed, counsel shall list on a separate piece of paper the page

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numbers of the transcript containing protected material and shall mail

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copies of the list to counsel for all parties within twenty (20) days after

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receipt of the certified transcript from the court reporter so that it may be

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affixed to the face of the transcript and each copy thereof. Pending such

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designation by counsel, the entire deposition transcript, including exhibits,

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shall be deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If

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no designation is received within thirty (30) days after receipt of a

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certified transcript from the court reporter, the transcript shall be

is

designated

If

a

portion

as

“CONFIDENTIAL”

of

a

deposition

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STIPULATED PROTECTIVE ORDER

is

or

“HIGHLY

designated

as

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considered not to contain any Designated Materials; and
c.

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for information produced in non-paper media (e.g.,

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videotape, audiotape, and computer disk), designation shall be made by

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affixing in a prominent place on the exterior of the container or containers

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in

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

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Receiving Party generates any “hard copy,” transcription, or printout from

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any such designated non-paper media, such party must stamp each page

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and the hard copy,

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which

in

the

information

or

item

is

stored

the

legend

In the event a

transcription, or printout shall be treated as it is designated.
10.

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For any filings made in the District Court, the parties shall use

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their best efforts to include Designated Materials only when absolutely

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necessary and shall only file versions of sealed filings permitted by the District

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Court that redact any portions of those filings that contain or reflect Designated

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Materials. Until the District Court has ruled on a motion to seal, no materials

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containing Designated Materials proposed to be filed with the District Court

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under seal shall be disclosed to any person except as provided in this Order. A

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complete, unredacted set of documents filed under seal shall be provided by the

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filing party to opposing counsel.
11.

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If timely corrected, an inadvertent failure to designate

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qualified

information

or

items

as

“CONFIDENTIAL”

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CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right

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to secure protection under this Order for such information or items. If the

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information or items is appropriately designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” after it was initially produced, the Receiving

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Party, upon timely notification of the designation, must make reasonable efforts

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to assure that the Designated Materials are treated in accordance with the

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provisions of this Order.
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STIPULATED PROTECTIVE ORDER

or

“HIGHLY

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12.

A party shall not be obligated to challenge the propriety of a

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” designation at the time

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made, and failure to do so shall not preclude a subsequent challenge thereto during

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the pendency of this litigation. In the event that any party to this litigation

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disagrees at any stage of these proceedings with such designation (“Challenging

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Party”), such party shall provide to the Designating Party written notice of its

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disagreement with the designation. The parties shall first try to dispose of such

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dispute in good faith pursuant to Local Rule 37-1 et seq. If the dispute cannot be

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resolved, the Challenging Party may file a motion requesting that the District Court

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determine whether the disputed material shall be treated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL” under the Order. The Designating Party shall have

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the burden of proving that the information or item has been properly designated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”.

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designated as Designated Materials shall retain this status until such time as either:

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(a) the parties expressly agree otherwise in writing, or (b) the District Court orders

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otherwise, unless such order is stayed pending appellate review.

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13.

Discovery Material

In the event any Designated Materials are used in any proceeding

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in the District Court, they shall not lose their “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL” status through such use.

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14.

If Designated Materials are disclosed to any person other than

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in the manner authorized by this Order, the person responsible for the disclosure

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must immediately bring all pertinent facts relating to such disclosure to the

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attention of counsel for the Designating Party and, without prejudice to any

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other rights and remedies of the parties, make every effort to prevent further

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disclosure by it or by the person who was the recipient of such information.

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15.

In the event any Receiving Party having possession, custody,

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or control of any Discovery Materials provided by the Designating Party

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receives a subpoena or other process or order to produce in another legal
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STIPULATED PROTECTIVE ORDER

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proceeding the Discovery Materials, such Receiving Party shall promptly notify

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counsel for the Designating Party of the subpoena or other process or order,

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furnish counsel for the Designating Party with a copy of said subpoena or other

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process or order, and cooperate with respect to all reasonable procedures sought

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to be pursued by the Designating Party whose interests may be affected. The

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Designating Party shall have the burden of defending against such subpoena or

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other process or order. The Receiving Party shall be entitled to comply with the

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subpoena or other process or order unless the Designating Party has notified the

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Receiving Party prior to the production date identified in the subpoena or other

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process or order that it has filed a motion seeking to modify, quash, or otherwise

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prevent the disclosure of the information sought. The Designating Party will

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thereafter promptly inform the Receiving Party of the court’s order on the

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subject motion so the Receiving Party can promptly comply with the terms of

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the order. Notwithstanding the foregoing or anything else in this Order, nothing

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in this Order shall be construed as authorizing a party to disobey a lawful

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subpoena issued in another action.
16.

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Entering into, agreeing to, or producing or receiving

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information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”

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or otherwise complying with the terms of this Order shall not:
a.

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operate as an admission by any party that any material

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designated by another party or non-party actually contains or reflects trade

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secrets or other confidential information;
b.

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reduce in any way the rights of the parties or non-parties

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from whom discovery may be sought to object to a request for discovery

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or to the production of documents or materials that they may consider not

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subject to discovery or privileged from discovery;

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STIPULATED PROTECTIVE ORDER

c.

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prejudice in any way the rights of any party to object to

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the authenticity or admissibility of any document, materials, or testimony

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that is subject to this Order;
d.

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prejudice in any way the rights of any party to seek a

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determination by the District Court as to the appropriateness of a

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designation; or
e.

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prevent the parties from agreeing to alter or waive the

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protections or remedies provided in this Order with respect to any

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particular Designated Materials or Discovery Materials, provided that such

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agreement, alteration, or waiver is in writing and signed by both parties.

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No modification of this Order by the parties shall have the force or effect

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of a Court order unless the District Court approves the modification.
17.

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This Order is without prejudice to the right of any party to

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seek relief, upon good cause shown, from any of the provisions contained in this

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Order.
18.

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Nothing contained herein shall preclude a producing party or

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non-party from using his, her, or its own confidential information, documents, or

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materials in any manner he, she, or it sees fit, or from revealing such confidential

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information, documents, or materials to whomever he, she, or it chooses.

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STIPULATED PROTECTIVE ORDER

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STIPULATED PROTECTIVE ORDER

19.

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After termination of this action, the restrictions on the

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communication and disclosure provided for herein shall continue to be binding

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upon the parties and all other persons to whom Designated Materials or information

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contained therein has been communicated or disclosed pursuant to the provisions of

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this Order.

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20.

All Designated Material subject to this Order shall be returned

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to the Designating Parties upon termination of this action (or, upon written

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permission by the Designating Party, destroyed). Termination of this action shall be

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taken and construed as the date forty-five (45) days following (a) the filing of a

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stipulated dismissal or the entry of a voluntary dismissal; (b) a final non-

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appealable order disposing of this case; or (c) the expiration of the time for any

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appeal. Upon such termination, counsel of record for the Receiving Party shall

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notify counsel for the Designating Party of compliance. Counsel for the Receiving

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Party shall make a reasonable effort to retrieve any documents or information

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subject to this Order from any person to whom such information has been given, and

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shall notify counsel for the Designating Party of the failure to retrieve any such

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information.

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retaining after termination of this action one copy of pleadings and motions

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however, that such counsel may not disclose retained materials that contain

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Designated Materials to any other person and shall keep such retained materials

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in a manner reflecting their confidential nature.

Nothing in this paragraph shall preclude outside counsel from

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: November 30, 2017

By: /S/
PLAINTIFF JAMES GENCARELLI, IN PRO
SE

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STIPULATED PROTECTIVE ORDER

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DATED: November 30, 2017

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4

MARTHA S. DOTY
CASONDRA K. RUGA
LISA GARCIA
ALSTON & BIRD LLP
/S/

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Lisa Garcia
Attorneys for Defendants
TWENTIETH CENTURY FOX FILM th
CORPORATION (Erroneously sued as 20
Century Fox Film Corporation) and CHERNIN
ENTERTAINMENT, LLC

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: November 30, 2017

_________________________________
Hon. Andrew J. Wistrich

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STIPULATED PROTECTIVE ORDER

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EXHIBIT 1

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________ [print or type full name], of ________________ [print or

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type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California on _______ in the case of JAMES

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GENCARELLI, v. TWENTIETH CENTURY FOX FILM CORPORATION, ET

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AL. Case No. 2:17-CV-02818-ODW (AJW). I agree to comply with and to be bound

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by all the terms of this Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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or item that is subject to this Stipulated Protective Order to any person or entity except

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in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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I hereby appoint ___________________[print or type full name] of

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_____________ [print or type full address and telephone number] as my California

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agent for service of process in connection with this action or any proceedings related

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to enforcement of this Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name:
[printed name]

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Signature:

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STIPULATED PROTECTIVE ORDER