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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1 2 3 4 5 6 7 8 9 10 11 JAMES GENCARELLI (PRO-SE) 2185 Lemoine Ave Fort Lee, New Jersey 07024 201.951.0926 / 201.242.9425 E-mail: jimmygencarelli@gmail.com 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: (213) 576-1000 E-mail: martha.doty@alston.com casondra.ruga@alston.com lisa.garcia@alston.com Attorneys for Defendants TWENTIETH CENTURY FOX FILM CORPORATION and CHERNIN ENTERTAINMENT, LLC 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 15 Case No. 2:17-CV-02818-ODW (AJW) JAMES GENCARELLI, Assigned to the Hon. Otis D. Wright, II – 16 18 19 20 21 22 Courtroom 5D Plaintiff, 17 v. PROTECTIVE ORDER 20TH CENTURY-FOX FILM CORPORATION JIM GIANOPULOS, CEO (Individually) CHERNIN ENTERTAINMENT, LLC PETER CHERNIN, CEO (Individually) JENNO TOPPING (Individual) ET AL, 23 24 Defendants. 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 It is stipulated and agreed by and between counsel for the parties that the 2 terms and conditions of this Stipulated Protective Order (“Order”) shall govern the 3 handling of documents, answers to interrogatories, depositions, pleadings, exhibits, 4 and all other information exchanged by the parties in this action. Disclosure and 5 discovery activity in this action may involve the production of confidential, 6 proprietary, or private information for which special protection from public 7 disclosure and from use for any purpose other than prosecuting, defending, or 8 resolving this litigation is warranted. The parties acknowledge that this Order does 9 not confer blanket protections on all disclosures, productions, or responses to 10 discovery and that the protection it affords extends only to the limited information or 11 items that are entitled under applicable legal principles to treatment as confidential. 12 The parties further acknowledge that this Order creates no entitlement to file 13 confidential information under seal; Federal Civil Local Rule 79-5 and the local rules 14 of the District Court judge set forth the standards to be followed when a party seeks 15 to file material under seal. 16 It is ORDERED as follows: 17 1. This Order shall govern all items or information, regardless of 18 the medium or manner in which they are generated, stored, or maintained 19 (including, among other things, testimony, transcripts, tangible things, and 20 intangible things including, but not limited to musical tracks, soundtracks and/or 21 other recordings), that are produced or generated in disclosures or in response to 22 discovery in this litigation (“Discovery Materials”). 23 2. Any party to this litigation shall have the right to designate 24 Discovery Materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” 25 pursuant to the terms of this Order. 26 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” will be referred to as 27 “Designated Materials.” 28 subpoena or otherwise may designate Discovery Materials pursuant to this Order Discovery Materials designated Any third party producing documents pursuant to a 2 STIPULATED PROTECTIVE ORDER 1 only if an authorized representative of the producing third party executes a 2 written acknowledgment, substantially in the form of Exhibit 1 annexed to this 3 Order, that the non-party has reviewed a copy of this Order, will comply with its 4 terms, and will submit to adjudication by the District Court of any dispute 5 regarding that third-party’s designations under this Order, enforceable by and 6 subject to the jurisdiction of the District Court as may be necessary. 7 a. All designations must be made in good faith and on 8 reasonable belief that the information or item being designated accurately 9 meets the definition of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” 10 b. A party or non-party that designates Discovery Materials 11 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” (“Designating 12 Party”) must designate for protection, where practicable, only those parts 13 of the material, documents, items, or communications that qualify so that 14 other portions of the material, documents, items, or communications for 15 which protection is not warranted are not swept unjustifiably within the 16 ambit of this Order. 17 c. Except as otherwise provided in this Order, e.g., with 18 respect to deposition testimony as provided in Section 9(b) below, or as 19 otherwise stipulated or ordered, disclosure of Discovery Materials that 20 qualify for protection under this Order must be clearly so designated 21 before being disclosed or produced. 22 soundtracks and/or other recordings which are not tangible, the 23 Designating Party will indicate the designation in a separate writing before 24 being disclosed or produced. 25 d. In the case of musical tracks, Materials marked “CONFIDENTIAL” shall be non- 26 public Discovery Materials that the “Designating Party” in good faith 27 believes qualify for protection under Rule 26(c) of the Federal Rules of 28 Civil Procedure, including, but not limited to, musical tracks, soundtracks, 3 STIPULATED PROTECTIVE ORDER 1 scores, and/or other recordings, trade secrets or other confidential research, 2 development, or commercial information. e. 3 Materials marked “HIGHLY CONFIDENTIAL” shall be 4 highly sensitive non-public Discovery Materials, disclosure of which to 5 another Party or Non-Party would create a substantial risk of serious harm 6 to the Designating Party’s competitive position or otherwise reveal 7 internal business or strategic information whose disclosure could prejudice 8 the Designating Party, including, but not limited to, musical tracks, 9 soundtracks, scores, and/or other recordings, trade secrets or other 10 11 confidential research, development, or commercial information. 3. The party that receives Discovery Materials or Designated 12 Materials (“Receiving Party”) shall use the Discovery Materials or Designated 13 Materials solely for purposes of this litigation between the parties, but not for 14 any other purpose whatsoever (including that such materials may not be 15 disseminated to the media or general public). 16 4. Unless otherwise ordered by the District Court or permitted in 17 writing by the Designating Party, the Receiving Party may disclose materials 18 marked “CONFIDENTIAL” only to: 19 a. any individual who is a party; any officer, director, or 20 employee (including in-house counsel) of a party; or any former officer, 21 director, or employee of a party to whom it is deemed reasonably 22 necessary that the Designated Materials be shown for purposes of the 23 litigation and who has executed the “Acknowledgement and Agreement to 24 Be Bound” (Exhibit 1) before being provided the Designated Materials; 25 b. the Receiving Party’s outside counsel, and employees of 26 and independent contractors for outside counsel that are engaged in work 27 for such counsel necessary to assist in this litigation. The term “outside 28 counsel” shall mean the attorneys and their firms who have entered an 4 STIPULATED PROTECTIVE ORDER 1 appearance in this case; c. 2 persons retained by a party or its counsel to serve as an 3 expert witness or a consultant in this litigation to whom disclosure is 4 reasonably necessary for this litigation and who have executed the 5 “Acknowledgement and Agreement to Be Bound” (Exhibit 1) before being 6 provided the Designated Materials; d. 7 witnesses in the course of deposition where counsel has a 8 reasonable and good faith belief that examination with respect to the 9 Designated Materials is necessary, and any person being prepared to 10 testify where counsel has a reasonable and good faith belief that such person 11 will be a witness in this action and that his examination with respect to the 12 Designated Materials is necessary in connection with such testimony; 13 persons to whom Designated Materials are disclosed pursuant to this 14 subparagraph 15 Designated Materials; e. 16 may not be permitted to retain copies of the any authorized representative of an insurer or other person 17 providing or potentially providing indemnity with regard to the litigation, 18 provided that any such person shall be advised that they are subject to the 19 terms of this Order before being provided Designated Materials; f. 20 21 custodian 22 the information contained or reflected in the Designated Materials; 23 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 24 transcripts of depositions, professional trial consultants, and professional 25 vendors to whom disclosure is reasonably necessary for this litigation and 26 who have executed the “Acknowledgement and Agreement to Be Bound” 27 (Exhibit 1) before being provided the Designated Materials; and 28 h. the District Court and its personnel. 5 STIPULATED PROTECTIVE ORDER 5. 1 Unless otherwise ordered by the District Court or permitted in 2 writing by the Designating Party, the Receiving Party may disclose materials 3 marked “HIGHLY CONFIDENTIAL” only to: a. Individuals described in Paragraphs 4(b)-(c), (e)-(h) b. 4 Designated in-house counsel (or their staff) of the above; and 5 6 7 Receiving Party (1) who has no involvement in competitive decision- 8 making, (2) to whom disclosure is reasonably necessary for this litigation, 9 and (3) who has executed the “Acknowledgment and Agreement to Be Bound” (Exhibit 1). 10 11 Persons who are authorized to review Designated Materials 12 shall hold such materials in confidence and shall not disclose their 13 contents, either verbally or in writing, to any person not otherwise 14 authorized to receive such information under this Order, or otherwise 15 required by law. Copies of Designated Materials shall be made only to the 16 extent necessary to facilitate permitted use under this Order. 6. 17 The recipient of Designated Materials provided under this 18 Order shall maintain such information in a secure and safe area and shall 19 exercise the same standard of due and proper care with respect to the storage, 20 custody, use or dissemination of such information as is exercised by the 21 recipient with respect to its own proprietary information. Designated Materials 22 shall not be copied, reproduced, summarized or abstracted, except to the extent 23 that such copying, reproduction, summary or abstraction is reasonably necessary 24 for purposes related to this lawsuit. All such copies, reproductions, summaries, 25 extractions, and abstractions shall be subject to the terms of this Order, and 26 labeled in the same manner as the Designated Materials on which they are 27 based. 28 /// 6 STIPULATED PROTECTIVE ORDER 7. 1 In the event a party deems it necessary or appropriate to 2 disclose any Designated Materials to any person not specified in Paragraphs 4 or 3 5, that party shall notify counsel for the Designating Party in writing of: (i) the 4 Designated Materials it wishes to disclose, and (ii) the person or persons to 5 whom such disclosure is to be made. The proposed disclosure shall not be made 6 absent written permission of the Designating Party, unless the party wishing to 7 make the proposed disclosure obtains an order from the District Court 8 permitting the proposed disclosure. Counsel shall obtain from all persons to 9 whom disclosures are made pursuant to this Paragraph 8 a written 10 acknowledgement, substantially in the form of Exhibit 1 attached hereto, that 11 such person or persons have reviewed a copy of this Order, will comply with its 12 terms in all respects enforceable by and subject to the jurisdiction of the District 13 Court. 8. 14 In the event of any inadvertent disclosure of attorney-client 15 privileged information or information subject to the attorney work product 16 doctrine or any other privilege, the party making such inadvertent disclosure, 17 after learning of such inadvertent disclosure, shall immediately notify the party 18 to whom the inadvertent disclosure was made; the obligations of the Receiving 19 Party are those set forth in Rule 26(b)(5)(B) of the Federal Rules of Civil 20 Procedure. 21 22 9. The Designating Party shall designate Discovery Materials “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” as follows: a. 23 for information in documentary form (e.g., paper or 24 electronic documents, 25 designation 26 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” on each page that 27 contains protected material prior to production; if only a portion or 28 portions of the material on a page qualifies for protection, the Designating shall be but made excluding by transcripts placing 7 STIPULATED PROTECTIVE ORDER the of depositions), following legend 1 Party also must clearly identify the protected portion(s) (e.g., by making 2 appropriate markings in the margins); b. 3 for testimony given in deposition, designation of the 4 portion of the transcript (including exhibits) as “CONFIDENTIAL” or 5 “HIGHLY CONFIDENTIAL” shall be made by a statement to such effect 6 on the record in the course of the deposition or, upon review of such 7 transcript, by counsel for the party to whose protected material the 8 deponent has had access. If a portion of a deposition is designated as 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before the 10 deposition is transcribed, the transcript containing or reflecting protected 11 materials shall be bound in a separate volume marked “CONFIDENTIAL” 12 or “HIGHLY CONFIDENTIAL” as appropriate. If a portion of a 13 deposition 14 CONFIDENTIAL” during the course of a deposition, counsel may request 15 all persons, except persons entitled to receive Designated Materials 16 pursuant to this Order, to leave the room while the deposition is 17 proceeding until completion of the answer or answers containing protected 18 materials. 19 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” after the deposition 20 is transcribed, counsel shall list on a separate piece of paper the page 21 numbers of the transcript containing protected material and shall mail 22 copies of the list to counsel for all parties within twenty (20) days after 23 receipt of the certified transcript from the court reporter so that it may be 24 affixed to the face of the transcript and each copy thereof. Pending such 25 designation by counsel, the entire deposition transcript, including exhibits, 26 shall be deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If 27 no designation is received within thirty (30) days after receipt of a 28 certified transcript from the court reporter, the transcript shall be is designated If a portion as “CONFIDENTIAL” of a deposition 8 STIPULATED PROTECTIVE ORDER is or “HIGHLY designated as 1 considered not to contain any Designated Materials; and c. 2 for information produced in non-paper media (e.g., 3 videotape, audiotape, and computer disk), designation shall be made by 4 affixing in a prominent place on the exterior of the container or containers 5 in 6 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” 7 Receiving Party generates any “hard copy,” transcription, or printout from 8 any such designated non-paper media, such party must stamp each page 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and the hard copy, 10 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. 11 For any filings made in the District Court, the parties shall use 12 their best efforts to include Designated Materials only when absolutely 13 necessary and shall only file versions of sealed filings permitted by the District 14 Court that redact any portions of those filings that contain or reflect Designated 15 Materials. Until the District Court has ruled on a motion to seal, no materials 16 containing Designated Materials proposed to be filed with the District Court 17 under seal shall be disclosed to any person except as provided in this Order. A 18 complete, unredacted set of documents filed under seal shall be provided by the 19 filing party to opposing counsel. 11. 20 If timely corrected, an inadvertent failure to designate 21 qualified information or items as “CONFIDENTIAL” 22 CONFIDENTIAL” does not, standing alone, waive the Designating Party’s right 23 to secure protection under this Order for such information or items. If the 24 information or items is appropriately designated as “CONFIDENTIAL” or 25 “HIGHLY CONFIDENTIAL” after it was initially produced, the Receiving 26 Party, upon timely notification of the designation, must make reasonable efforts 27 to assure that the Designated Materials are treated in accordance with the 28 provisions of this Order. 9 STIPULATED PROTECTIVE ORDER or “HIGHLY 1 12. A party shall not be obligated to challenge the propriety of a 2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” designation at the time 3 made, and failure to do so shall not preclude a subsequent challenge thereto during 4 the pendency of this litigation. In the event that any party to this litigation 5 disagrees at any stage of these proceedings with such designation (“Challenging 6 Party”), such party shall provide to the Designating Party written notice of its 7 disagreement with the designation. The parties shall first try to dispose of such 8 dispute in good faith pursuant to Local Rule 37-1 et seq. If the dispute cannot be 9 resolved, the Challenging Party may file a motion requesting that the District Court 10 determine whether the disputed material shall be treated as “CONFIDENTIAL” or 11 “HIGHLY CONFIDENTIAL” under the Order. The Designating Party shall have 12 the burden of proving that the information or item has been properly designated as 13 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”. 14 designated as Designated Materials shall retain this status until such time as either: 15 (a) the parties expressly agree otherwise in writing, or (b) the District Court orders 16 otherwise, unless such order is stayed pending appellate review. 17 13. Discovery Material In the event any Designated Materials are used in any proceeding 18 in the District Court, they shall not lose their “CONFIDENTIAL” or “HIGHLY 19 CONFIDENTIAL” status through such use. 20 14. If Designated Materials are disclosed to any person other than 21 in the manner authorized by this Order, the person responsible for the disclosure 22 must immediately bring all pertinent facts relating to such disclosure to the 23 attention of counsel for the Designating Party and, without prejudice to any 24 other rights and remedies of the parties, make every effort to prevent further 25 disclosure by it or by the person who was the recipient of such information. 26 15. In the event any Receiving Party having possession, custody, 27 or control of any Discovery Materials provided by the Designating Party 28 receives a subpoena or other process or order to produce in another legal 10 STIPULATED PROTECTIVE ORDER 1 proceeding the Discovery Materials, such Receiving Party shall promptly notify 2 counsel for the Designating Party of the subpoena or other process or order, 3 furnish counsel for the Designating Party with a copy of said subpoena or other 4 process or order, and cooperate with respect to all reasonable procedures sought 5 to be pursued by the Designating Party whose interests may be affected. The 6 Designating Party shall have the burden of defending against such subpoena or 7 other process or order. The Receiving Party shall be entitled to comply with the 8 subpoena or other process or order unless the Designating Party has notified the 9 Receiving Party prior to the production date identified in the subpoena or other 10 process or order that it has filed a motion seeking to modify, quash, or otherwise 11 prevent the disclosure of the information sought. The Designating Party will 12 thereafter promptly inform the Receiving Party of the court’s order on the 13 subject motion so the Receiving Party can promptly comply with the terms of 14 the order. Notwithstanding the foregoing or anything else in this Order, nothing 15 in this Order shall be construed as authorizing a party to disobey a lawful 16 subpoena issued in another action. 16. 17 Entering into, agreeing to, or producing or receiving 18 information designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” 19 or otherwise complying with the terms of this Order shall not: a. 20 operate as an admission by any party that any material 21 designated by another party or non-party actually contains or reflects trade 22 secrets or other confidential information; b. 23 reduce in any way the rights of the parties or non-parties 24 from whom discovery may be sought to object to a request for discovery 25 or to the production of documents or materials that they may consider not 26 subject to discovery or privileged from discovery; 27 /// 28 /// 11 STIPULATED PROTECTIVE ORDER c. 1 prejudice in any way the rights of any party to object to 2 the authenticity or admissibility of any document, materials, or testimony 3 that is subject to this Order; d. 4 prejudice in any way the rights of any party to seek a 5 determination by the District Court as to the appropriateness of a 6 designation; or e. 7 prevent the parties from agreeing to alter or waive the 8 protections or remedies provided in this Order with respect to any 9 particular Designated Materials or Discovery Materials, provided that such 10 agreement, alteration, or waiver is in writing and signed by both parties. 11 No modification of this Order by the parties shall have the force or effect 12 of a Court order unless the District Court approves the modification. 17. 13 This Order is without prejudice to the right of any party to 14 seek relief, upon good cause shown, from any of the provisions contained in this 15 Order. 18. 16 Nothing contained herein shall preclude a producing party or 17 non-party from using his, her, or its own confidential information, documents, or 18 materials in any manner he, she, or it sees fit, or from revealing such confidential 19 information, documents, or materials to whomever he, she, or it chooses. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 12 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 28 13 STIPULATED PROTECTIVE ORDER 19. 1 After termination of this action, the restrictions on the 2 communication and disclosure provided for herein shall continue to be binding 3 upon the parties and all other persons to whom Designated Materials or information 4 contained therein has been communicated or disclosed pursuant to the provisions of 5 this Order. 6 20. All Designated Material subject to this Order shall be returned 7 to the Designating Parties upon termination of this action (or, upon written 8 permission by the Designating Party, destroyed). Termination of this action shall be 9 taken and construed as the date forty-five (45) days following (a) the filing of a 10 stipulated dismissal or the entry of a voluntary dismissal; (b) a final non- 11 appealable order disposing of this case; or (c) the expiration of the time for any 12 appeal. Upon such termination, counsel of record for the Receiving Party shall 13 notify counsel for the Designating Party of compliance. Counsel for the Receiving 14 Party shall make a reasonable effort to retrieve any documents or information 15 subject to this Order from any person to whom such information has been given, and 16 shall notify counsel for the Designating Party of the failure to retrieve any such 17 information. 18 retaining after termination of this action one copy of pleadings and motions 19 however, that such counsel may not disclose retained materials that contain 20 Designated Materials to any other person and shall keep such retained materials 21 in a manner reflecting their confidential nature. Nothing in this paragraph shall preclude outside counsel from 22 23 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 24 25 26 DATED: November 30, 2017 By: /S/ PLAINTIFF JAMES GENCARELLI, IN PRO SE 27 28 14 STIPULATED PROTECTIVE ORDER 1 DATED: November 30, 2017 2 3 4 MARTHA S. DOTY CASONDRA K. RUGA LISA GARCIA ALSTON & BIRD LLP /S/ 5 6 7 Lisa Garcia Attorneys for Defendants TWENTIETH CENTURY FOX FILM th CORPORATION (Erroneously sued as 20 Century Fox Film Corporation) and CHERNIN ENTERTAINMENT, LLC 8 9 10 PURSUANT TO STIPULATION, IT IS SO ORDERED. 11 12 Dated: November 30, 2017 _________________________________ Hon. Andrew J. Wistrich 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 STIPULATED PROTECTIVE ORDER 1 EXHIBIT 1 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ______________ [print or type full name], of ________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Central District of California on _______ in the case of JAMES 7 GENCARELLI, v. TWENTIETH CENTURY FOX FILM CORPORATION, ET 8 AL. Case No. 2:17-CV-02818-ODW (AJW). I agree to comply with and to be bound 9 by all the terms of this Stipulated Protective Order and I understand and acknowledge 10 that failure to so comply could expose me to sanctions and punishment in the nature of 11 contempt. I solemnly promise that I will not disclose in any manner any information 12 or item that is subject to this Stipulated Protective Order to any person or entity except 13 in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. 18 I hereby appoint ___________________[print or type full name] of 19 _____________ [print or type full address and telephone number] as my California 20 agent for service of process in connection with this action or any proceedings related 21 to enforcement of this Stipulated Protective Order. 22 Date: 23 City and State where sworn and signed: 24 25 Printed name: [printed name] 26 27 Signature: 28 16 STIPULATED PROTECTIVE ORDER

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