Casey Thornton et al v. Micro Star International Co. Ltd. et al

Filing 45

PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon re Stipulation for Protective Order 44 . (ib)

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WESTERMAN LAW CORP.
Jeff S. Westerman (SBN 94559)
[e-mail]
Ken A. Remson (SBN153850)
[e-mail]
1875 Century Park East, Suite 2200
Los Angeles, CA 90067
Tel: [phone]
Fax: [phone]
THE CONSUMER LAW GROUP
Alan M. Mansfield (SBN 125998)
[e-mail]
16870 W. Bernardo Dr., Suite 400
San Diego, CA 92127
Tel: [phone]
Fax [phone]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

13 CASEY THORNTON and CARL
JONES, individually and on behalf of
14 all others similarly situated,

CASE NO. 17-cv-03231-CAS (AFM)

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STIPULATED PROTECTIVE ORDER1

Plaintiffs,

16

CLASS ACTION

v.

17 MSI COMPUTER CORP.; and DOES
1-10,
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Defendants.
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A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,
proprietary or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
Order does not confer blanket protections on all disclosures or responses to
This Stipulated Protective Order is based substantially on the model protective
order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures.
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-1STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles.

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B.

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

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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among

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other things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development,

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or commercial information (including information implicating privacy rights of

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third parties), information otherwise generally unavailable to the public, or which

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may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite

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the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the parties

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

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reasonable necessary uses of such material in preparation for and in the conduct

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

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justice, a protective order for such information is justified in this matter. It is the

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intent of the parties that information will not be designated as confidential for

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tactical reasons and that nothing be so designated without a good faith belief

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that it has been maintained in a confidential, non-public manner, and there is good

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cause why it should not be part of the public record of this case.

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C.

GOOD CAUSE STATEMENT

ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL

The parties further acknowledge, as set forth in Section 12.3, below, that
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CASE NO. 17-CV-03231-CAS (AFM)

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this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Local Civil Rule 79-5 sets forth the procedures that must

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be followed and the standards that will be applied when a party seeks permission

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from the court to file material under seal.

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

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judicial proceedings and records in civil cases. In connection with non-dispositive

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motions, good cause must be shown to support a filing under seal. See Kamakana

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v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.

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Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

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protective orders require good cause showing), and a specific showing of good

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cause or compelling reasons with proper evidentiary support and legal

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justification, must be made with respect to Protected Material that a party seeks to

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file under seal.

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Material as CONFIDENTIAL does not—without the submission of competent

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evidence by declaration, establishing that the material sought to be filed under

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seal qualifies as confidential, privileged, or otherwise protectable—constitute

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good cause.

The parties’ mere designation of Disclosure or Discovery

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Further, if a party requests sealing related to a dispositive motion or trial,

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then compelling reasons, not only good cause, for the sealing must be shown,

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and the relief sought shall be narrowly tailored to serve the specific interest to be

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protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be filed

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or introduced under seal in connection with a dispositive motion or trial, the

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party seeking protection must articulate compelling reasons, supported by specific

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facts and legal justification, for the requested sealing order. Again, competent

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evidence supporting the application to file documents under seal must be provided

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by declaration.
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CASE NO. 17-CV-03231-CAS (AFM)

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Any document that is not confidential, privileged, or otherwise protectable

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in its entirety will not be filed under seal if the confidential portions can be

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redacted.

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed. Any application that seeks to file

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

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2.

If documents can be redacted, then a redacted version for public

DEFINITIONS

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2.1

Action: this pending federal lawsuit.

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2.2

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

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designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information

(regardless

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of how it is generated, stored or maintained) or tangible things that qualify

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for protection under Federal Rule of Civil Procedure 26(c), and as specified

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above in the Good Cause Statement.

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2.4

Counsel:

Outside Counsel of Record and House Counsel (as well

as their support staff).
2.5

Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material:

all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.

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2.7

Expert:

a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this Action.

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2.8

House Counsel:

attorneys who are employees of a party to this
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STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

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Action. House Counsel does not include Outside Counsel of Record or any

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other outside counsel.
2.9

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

or other legal entity not named as a Party to this action.
2.10

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Outside Counsel of Record:

attorneys who are not employees of

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

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm that has appeared on behalf of that party, and includes support staff.
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Party:

any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).
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Producing Party: a Party or Non-Party that produces Disclosure

or Discovery Material in this Action.
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Professional Vendors: persons

or

entities

that

provide

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litigation support services (e.g., photocopying, videotaping, translating, preparing

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exhibits or demonstrations, and organizing, storing, or retrieving data in any form

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or medium) and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.15

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Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not

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only Protected Material (as defined above), but also (1) any information

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copied or extracted from Protected Material; (2) all copies, excerpts, summaries,

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or compilations of Protected Material; and (3) any testimony, conversations,

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or presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of
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CASE NO. 17-CV-03231-CAS (AFM)

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

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4.

DURATION

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

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to the

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trial judge in advance of the trial.

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(distinguishing “good cause” showing for sealing documents produced in

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discovery from “compelling reasons” standard when merits-related documents are

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part of court record). Accordingly, the terms of this protective order do not extend

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beyond the commencement of the trial.

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5.

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See Kamakana, 447 F.3d at 1180-81

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The Designating

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Party must designate for protection only those parts of material, documents,

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items or oral or written communications that qualify so that other portions of

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the material, documents, items or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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Mass,

indiscriminate

or

routinized

designations

are

prohibited.

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Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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

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it designated for protection do not qualify for protection, that Designating Party
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CASE NO. 17-CV-03231-CAS (AFM)

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided

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in this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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for protection under this Order must be clearly so designated before the material

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is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

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electronic documents, but excluding transcripts of depositions or other pretrial

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or trial proceedings), that the Producing Party affix at minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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

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

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

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

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

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deemed “CONFIDENTIAL.” After the inspecting Party has

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

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If only a portion of the material on a page qualifies for protection, the Producing

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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).

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(b)

identified

the

for testimony given in depositions that the Designating Party
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STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

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identifies the Disclosure or Discovery Material on the record, before the

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close of the deposition all protected testimony.
(c)

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for information

produced

in

some

form

other

than

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documentary and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information is stored the legend “CONFIDENTIAL.”

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portions of the information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate.

If only a portion or

If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for

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such material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time that is consistent with the

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Court’s Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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

Joint Stipulation. Any challenge submitted to the Court shall be via

a joint stipulation pursuant to Local Rule 37-2.
6.4

The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party.

Frivolous challenges, and those made for an

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improper purpose (e.g., to harass or impose unnecessary expenses and

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burdens on other parties) may expose the Challenging Party to sanctions.

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Unless the Designating Party has waived or withdrawn the confidentiality

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designation, all parties shall continue to afford the material in question the
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CASE NO. 17-CV-03231-CAS (AFM)

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level of protection to which it is entitled

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designation until the Court rules on the challenge.

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7.

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under

the

Producing

Party’s

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

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

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

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

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under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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

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

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving

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“CONFIDENTIAL” only to:

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(a)

Party may disclose any information or

item

designated

the Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to whom it is

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reasonably necessary to disclose the information for this Action;
(b)

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the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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(c)

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

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whom disclosure is reasonably necessary for this Action and who have

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;
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STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

(f)

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professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);
(g)

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the author or recipient of a document containing the

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

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information;
(h)

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during their depositions, witnesses, and attorneys for witnesses,

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

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deposing party requests that the witness sign the form attached as Exhibit 1 hereto;

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

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unless

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by

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the court. Pages of transcribed deposition testimony or exhibits to depositions

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that reveal Protected Material may be separately bound by the court reporter and

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may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order; and

they

(i)

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sign

the “Acknowledgment and Agreement to Be Bound”

any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party.

Such

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

promptly notify in writing the party who caused the subpoena or
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STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

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order to issue in the other litigation that some or all of the material covered

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by the subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought

to be pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with

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

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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9.

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A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION
(a)

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The terms of this Order are applicable to information produced

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by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

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

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request, to produce a Non-Party’s confidential information in its possession, and

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the Party is subject to an agreement with the Non-Party not to produce the

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Non-Party’s confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;
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CASE NO. 17-CV-03231-CAS (AFM)

(2)

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promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3)

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make the information requested available for inspection

by the Non-Party, if requested.
(c)

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

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the

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

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its Protected Material.

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10.

may

produce

the

Non-Party’s

confidential

information

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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CASE NO. 17-CV-03231-CAS (AFM)

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever

2

procedure may be established in an e-discovery order that provides for production

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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

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(e), insofar as the parties reach an agreement on the effect of disclosure of a

5

communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

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10

MISCELLANEOUS

person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order, no Party waives any right it otherwise would have to object to

13

disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

15

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

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

17

Protected Material must comply with Local Civil Rule 79-5. Protected Material

18

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

19

specific Protected Material at issue. If a Party’s request to file Protected Material

20

under seal is denied by the court, then the Receiving Party may file the information

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in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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

24

days of a written request by the Designating Party, each Receiving Party must return

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all Protected Material to the Producing Party or destroy such material. As used in

26

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

27

summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving
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CASE NO. 17-CV-03231-CAS (AFM)

1

Party must submit a written certification to the Producing Party (and, if not the same

2

person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

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(by category, where appropriate) all the Protected Material that was returned or

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destroyed and (2) affirms that the Receiving Party has not retained any copies,

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abstracts, compilations, summaries or any other format reproducing or capturing any

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of the Protected Material. Notwithstanding this provision, Counsel are entitled

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to retain an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work

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product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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14.

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VIOLATION
Any violation of this Order may be punished by appropriate measures

15

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: November 30, 2017

18

WESTERMAN LAW CORP.

19

By: /s/ Jeff S. Westerman
Jeff S. Westerman (SBN 94559)
[e-mail]
Ken A. Remson (SBN 153850)
[e-mail]
1875 Century Park East, Suite 2200
Los Angeles, CA 90067
Tel: [phone] / Fax: [phone]

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21
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23
24

THE CONSUMER LAW GROUP

27

By: /s/ Alan M. Mansfield
Alan M. Mansfield (SBN 125998)
[e-mail]
16870 W. Bernardo Dr., Suite 400
San Diego, CA 92127
Tel: [phone] / Fax [phone]

28

Attorneys for Plaintiffs

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-14STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

1

DATED: November 30, 2017

2

WHITE & CASE LLP

3

7

By: /s/ Bryan A. Merryman
Bryan a. Merryman 9SBN 134347)
[e-mail]
Deema B. Abini (SBN 301481)
[e-mail]
555 S. Flower Street, Suite 2700
Los Angeles, CA 90071-2433
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: 12/1/2017

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ALEXANDER F. MacKINNON
United States Magistrate Judge

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-15STIPULATED PROTECTIVE ORDER

CASE NO. 17-CV-03231-CAS (AFM)

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

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[print or type full name], of

[print

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

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and 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 [date] in the case of Thornton,

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et al. v. MSI Computer Corp., et al., Case No. 2:17-cv-03231-CAS (AFM).

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agree to comply with and to be bound by all the terms of this Stipulated Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt.

I solemnly promise that I

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will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with

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the provisions of this Order. I further agree to submit to the jurisdiction of the

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United States District Court for the Central District of California for enforcing the

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terms of this Stipulated Protective Order, even if such enforcement proceedings

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occur after termination of this action. I hereby appoint

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type full name] of

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Stipulated Protective

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Order.

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Date:

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City and State where sworn and signed:

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Printed name:

[print

[print or type full address and

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Signature:

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-16STIPULATED PROTECTIVE ORDER

or

CASE NO. 17-CV-03231-CAS (AFM)