Los Angeles SMSA Limited Partnership v. City of Arcadia

Filing 24

PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order 22 . [See Order for details.] (san)

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ease ~:~ i-cv-u:~ i its-u5~-~tnn uocument 1~-1 ~uea uyiu iil r Nage 1 or lu Nage iu ~:1~ i 1 MACKENZIE & ALBRITTON LLP JAMES A. HEARD(SBN 114940) Email:jheard@mallp.com 3 MELANIE SENGUPTA(SBN 244615) Email: m.sengupta@mallp.com 4 155 Sansome Street, Suite 800 5 San Francisco, California 94104 Telephone:(415)288-4000 Facsimile:(415)288-4010 2 7 GARY R. CLOUSE(SBN 111055) ISAACS CLOUSE CROSE &OXFORD LLP 9 Email: gclouse@icclawfirm.com 401 Wilshire Boulevard 8 10 12t Floor Penthouse " 1 1 Santa Monica, CA 90401 Telephone (310)458-3860 12 13 Attorneys for Plaintiff Los Angeles SMSA Limited Partnership, 14 d/b/a Verizon Wireless 15 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 16 17 18 19 LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited 2 partnership d/b/a VERIZON 0 21 WIRELESS, 22 CASE NO.: 2:17-cv-03778 DSF JEMx) ( ED]PROTECTIVE [ P ORDER Plaintiff, 23 24 Hon. Dale S. Fischer vs. 25 CITY OF ARCADIA, 2 6 Defendant. 27 28 [PROPOSED]PROTECTIVE ORDER Lase ~:~ ~-cv-u~ i its-u5~--~tnn uocument 1~-1 ~iiea uyiu r~l ~ Nage L of lu Nage iu ~:1~~ 1 Having reviewed the Stipulation Regarding Protective Order between the City 2 of Arcadia (the "City" or "Defendant") and Los Angeles SMSA Limited Partnership '), 3 ("Verizon Wireless" or "Plaintiff and good cause appearing, 4 IT IS HEREBY ORDERED as follows: 5 This protective order (the "Protective Order") shall govern the production or 6 disclosure of any document, record, or information designated as CONFIDENTIAL 7 ("Confidential Information") and produced by the parties or their agents during the 8 course of initial disclosures, discovery, pretrial proceedings, or trial in this action, 9 including all designated deposition testimony, all designated testimony taken at a 10 hearing or other proceeding, interrogatory answers, documents and other discovery 1 1 materials, whether produced informally, in response to interrogatories, requests for 12 admissions, requests for production of documents, or any other formal method of 13 discovery. In addition, the Parties contemplate that Confidential Information may 14 be produced by a non-party, and this Protective Order shall govern any designated 15 Confidential Information produced by a non-party. This Protective Order also shall 16 govern any designated document, record, or information produced in this action 17 pursuant to disclosures required under any applicable Federal Rule of Civil 18 Procedure or Central District of California Local Rule. 19 1. DESIGNATION 2 0 The City has sought discovery regarding the performance and coverage of 21 Plaintiffls wireless telecommunications system and its internal decision-making, 22 which may include information regarding: dropped calls, blocked calls, system 23 accessibility, and other network performance data, antenna and sector site maps, the 2 number of Verizon Wireless subscribers within the City of Arcadia or a designated 4 25 portion thereof,"drive tests" and related system performance reports prepared by 2 Verizon Wireless or its consultants, the "propagation models" and drive tests 6 27 Verizon Wireless employs for predicting system performance, existing and other 28 potential antenna locations serving the City of Arcadia, methodologies for . 2 PROPOSED]PROTECTIVE ORDER [ case ~:~ ~-cv-u:~ i i~-u5~-~tnn uocument LL-1 ►-ilea uyiu i~l ~ Nage ~ of lu Nage iu #:l:~y 1 evaluating the need for and location of new wireless communication facilities, and 2 other documents or information that constitute or contain "trade secret or other 3 confidential research, development, or commercial information" within the meaning 4 of Rule 26(c). 5 Verizon Wireless may designate as "CONFIDENTIAL" any discovery 6 responses or disclosures within the above categories. Any Confidential Information 7 shall be clearly marked "CONFIDENTIAL" prior to production, or subsequent to 8 selection for copying (i.e., in cases where Confidential Information is made 9 available for review prior to production), but prior to the actual copying. In addition 10 to the pending discovery, there may arise during the course of this litigation other 11 disclosures of Confidential Information, whether by additional discovery requests, 12 depositions, motions and other submissions to the court, and the like. This 13 Protective Order covers these instances, and any other occasions in which 14 Confidential Information may be produced or disclosed. 15 If it comes to Verizon Wireless's attention that information or items that it 16 designated for protection does not qualify for protection, Verizon Wireless must 17 promptly notify the City and withdraw the mistaken designation. 18 2. NOTICE AND MARKINGS 19 Any documents, material or information may be designated as Confidential 20 Information by stamping "CONFIDENTIAL" on each page in such manner that the 21 written matter is not obliterated or obscured. Plaintiff may designate any portion or 22 all of a deposition as Confidential Information by notifying the City on the record 23 during the deposition or in writing within fifteen (15) business days of the receipt of 24 the transcript. The Parties shall automatically treat all information disclosed at a 25 deposition as CONFIDENTIAL for fifteen (15) business days after receipt of the 26 transcript. After such fifteen-day period, any information that has not been 27 designated CONFIDENTIAL shall no longer be subject to this Protective Order, 28 except as set forth in Section 3, below. 3 [PROPOSED] PROTECTIVE ORDER case 1:~ ~-cv-u~ i i~-u5~-~tnn uocument ~1-1 Filea UyIU ~/l t Nage 4 of lu Nage IU #:14U INADVERTENT FAILURE TO DESIGNATE 1 3. 2 Failure to designate or stamp as CONFIDENTIAL at the time of production 3 shall not be a waiver of the protection for Confidential Information provided that 4 counsel promptly notifies the receiving party upon realizing the failure. However, 5 the receiving party shall not be in violation of this Protective Order for any 6 disclosure of information made before receiving such notice. OBJECTION TO DESIGNATION 7 4 . 8 The City may object to the designation of any material as Confidential 9 Information at any time. If the City objects to Plaintiff's designation of Confidential 10 Information, then the Parties shall meet and confer pursuant to Rule 26(c). If the 1 1 Parties cannot resolve the City's objections, then the City may file a motion 12 challenging the disputed designation. Until the Court rules on Plaintiff's motion, the 13 City shall treat the information as Confidential Information. On any motion 14 challenging the designation of Confidential Information, Verizon Wireless shall bear 15 the burden ofjustifying the Confidential Information designation. USE OF CONFIDENTIAL INFORMATION 16 5 . 17 Confidential Information as defined herein shall be used solely for the 18 purpose ofthis action and shall not be used for any other purpose whatsoever or 19 disclosed to any person or entity except the following: 2 0 a. The attorneys of record in this action and their employees or 21 contractors (such as photocopy services) who are assisting them in this action; 22 b. Independent experts who have been retained by the City or its attorneys or 23 f this action, provided that each independent expert shall first sign a copy of this 24 Protective Order, which shall be deemed to acknowledge notice and consent to the 25 terms of this Protective Order, and consent to the continuing jurisdiction of the 2 Court for the purposes of enforcing and remedying any violations of this Order. In 6 27 addition, if the independent expert is an employee or agent of a person or entity 28 providing commercial mobile radio services, the City must disclose that fact at least PROPOSED]PROTECTIVE ORDER [ Lase L:~ I-cv-U~ I I~-USA-JtM uocument ~~-1 ~iiea uyiu iil i Nage 5 or lu Nage iu x:141 1 ten (10) days before first disclosing information to that expert, so that Verizon 2 Wireless may seek appropriate additional protections from the Court. The City's 3 counsel shall maintain a copy of the Protective Order signed by such individuals, 4 and shall furnish a copy to the opposing party immediately after signing. Counsel 5 shall take all reasonably necessary steps to prevent the unauthorized disclosure of 6 any Confidential Information, and will be required to disclose the identity of any 7 expert in connection with enforcement of this Order; 8 c. Officers, directors, or employees of the Parties who require the 9 information to assist in or evaluate this action; 10 d. The Court and persons associate with or employed by the Court whose 1 1 ~ ~ duties require access to the information; 12 e. The author of the document and any person identified as a recipient of 13~ ~ the document on its face as well as any employee or former employee ofthe 14 designating party; 15 f . The officer taking, reporting, or videotaping a deposition and 16 employees of such officer to the extent necessary to prepare the transcript of the 17 deposition; and 18 g. Other persons, as agreed to in writing or on the record by all Parties, to 19 whom counsel seeking agreement in good faith believes it is necessary to disclose 20 such Confidential Information in order to prepare for trial. 21 6 . 22 Confidential Information shall include all documents and information RELATED DOCUMENTS 23 designated as CONFIDENTIAL,and in addition shall include:(a) all copies, 24 extracts and complete or partial summaries prepared from such documents or 25 information;(b)portions of deposition transcripts and e~ibits thereto that contain 2 or reflect the content of any such documents, copies, extracts, or summaries;(c) 6 27 portions of briefs, memoranda or any other writing filed with the Court and e~ibits 28 thereto that contain or reflect the content of any such documents, copies, extracts, or PROPOSED]PROTECTIVE ORDER [ ~;ase ~:~ ~-cv-u:~ i i~-u5~--~tm uocument ~~-1 ~uea uyiu iil r Nage ~ of lu Nage iu #:14~ 1 summaries; (d) designated deposition testimony; and (e) designated testimony taken 2 ~ at a hearing or at other proceedings. CONFIDENTIAL INFORMATION SUBMITTED TO COURT 3 7. 4 At such time as the Parties file pleadings, motions, or exchange e~ibits prior 5 to trial, Verizon Wireless and the City shall identify those pleadings, motions, and 6 e~ibits which are or include Confidential Information. If the City wishes to file 7 any Confidential Information with the Court, or any pleadings which disclose 8 Confidential Information, the parties shall meet and confer in an attempt to 9 eliminate or minimize the need for filing under seal by means of redaction, as 10 required under Local Rule 79-5.2.2(b). If the parties cannot reach agreement on the 1 1 extent of any redaction, the City may thereafter file an application for leave to file 12 the documents) in question under seal pursuant to Local Rule 79-5.2.2. The City 13 shall not file in the public case file any documents) which contain any Confidential nformation except as permitted by order of this Court. 14 I CONFIDENTIALITY OF PARTY'S OWN DOCUMENTS 15 8. 16 No person may disclose, in public or private, any designated Confidential nformation of another party except as provided for in this Protective Order, but 17 I 18 nothing in this Order shall affect the right of Verizon Wireless to disclose to its own 19 officers, directors, employees, attorneys, consultants or experts, or to any other 20 person, information or document designated by it as CONFIDENTIAL. Such 21 disclosure shall not waive the protections of this Protective Order and shall not 22 entitle other Parties or their attorneys to disclose such information or documents in 23 violation of it. CONFIDENTIAL INFORMATION FROM ANON-PARTY 24 9. 25 If any non-party is to produce any documents or information to Parties in this ~~ action that the non-party reasonably believes contains Confidential Information, the 27 non-party shall have the same rights and responsibilities as the Parties to designate f►~:~ documents and information as Confidential Information under this Protective Order. [PROPOSED] PROTECTIVE ORDER Lase L:µ ~-cv-u~ ~ ~~t-u5~-~tnn uocument 1L-1 ~uea uyiu iil i Nage i of lu Nage iu ~:14:~ OBLIGATIONS OF PARTIES 1 10. 2 Each ofthe Parties and their counsel of record agrees to abide by and be 3 ' bound by the provisions of this Protective Order and to use due care to see that its 4 provisions are known and adhered to by those under its supervision or control. 5 Nothing in this Protective Order shall bar counsel from rendering advice to their 6 client with respect to this litigation and, in the course thereof, relying upon any 7 Confidential Information. 8 In the event the City or any person under its supervision or control discloses 9 any Confidential Information to any person not authorized to receive such disclosure 10 under this Protective Order, the City shall immediately notify counsel for the party 1 1 whose Confidential Information has been disclosed and provide to such counsel all 12 known information concerning the nature and circumstances ofthe disclosure. The 13 City shall also promptly take all reasonable measures to retrieve the improperly 14 disclosed Confidential Information and to ensure that no further or greater 15 unauthorized disclosure and/or use thereof is made. INDEPENDENTLY OBTAINED MATERIAL 16 11. 17 Verizon Wireless shall not object on grounds of confidentiality to the use of 18 any document the City obtains independently from Verizon Wireless outside of the 19 context ofthis litigation. TERMINATION OF LITIGATION 20 12. 21 '~ Within ninety(90) days of the final conclusion ofthis litigation by settlement 22 or final judgment(including the resolution of any appeal thereofl, all persons 23 subject to the terms ofthis Order shall (i) destroy or assemble and return to the 24 producing party all Confidential Information,(ii) destroy any outlines, summaries, 25 abstracts, compilations, memoranda, documents and the like which constitute, 2 embody, contain, or disclose the contents of Confidential Information; and (iii) 6 27 provide an affidavit to the producing party's counsel confirming that they have 281 either destroyed or assembled and returned to the producing party all Confidential PROPOSED]PROTECTIVE ORDER [ case L:~ r-cv-u~ ~ its-u5~-~tnn uocument L~-1 ~uea uyiu ril r Nage tt of lu Nage i u x:144 1 Information (including but not limited to any documents that contain or disclose 2 ~ such information). 3 The terms ofthis Protective Order shall survive and remain in full force and 4 effect after the termination of this lawsuit and the Court shall have jurisdiction 5 over the Parties, their attorneys, and all persons to whom Confidential Information 6 has been disclosed for the purpose of enforcing the terms of this Protective Order 7 and/or redressing any violation thereof. ADDITIONAL PROTECTION 8 13. 9 Nothing in the foregoing provisions ofthis Protective Order shall be deemed 10 to preclude any Party from seeking and obtaining, on an appropriate showing, 1 1 additional protection with respect to the confidentiality of documents or other 12 discovery material, or relief from this Protective Order with respect to particular 13 material designated hereunder. By stipulating to the entry ofthis Protective Order, 14 no party waives any right it otherwise would have to object to disclosing or 15 producing any information or item on any ground not addressed in this Stipulated 16 Protective Order. Similarly, no Party waives any right to object on any ground to 17 use in evidence of any ofthe material covered by this Protective Order. GOOD CAUSE STATEMENT 18 14. 19 Rule 26(c) states that a court may enter a protective order,"for good cause," 2 " protect a party from annoyance, embarrassment, oppression, or undue burden or 0 to 21 expense...." Rule 26(c)includes anon-exhaustive list of the kinds of information 22 that may be subject to such a protective order: "trade secret or other confidential 23 research, development, or commercial information." Courts have long safeguarded a 24 party's confidential business or technical information wherever there is a threat of 25 serious economic injury through protective orders. Landco Equity Partners, LLC v. 2 City ofColorado Springs, Colo., 259 F.R.D. 510, 515(D. Colo. 2009)("[P]rotective 6 27 orders ... are common in litigation to protect sensitive information exchanged during 28 the course of discovery, particularly when the documents reflect confidential PROPOSED]PROTECTIVE ORDER [ case L:~ ~-cv-u~ ~ Ott-u5~-~t~v~ uocument ~l-1 ~iiea uyiu iil r Nage y of lu Nage iu x:145 1 financial information"); Phillips v. Byrd, 307 F.3d 1206, 1211-1212(9th Cir. 2002) "[t]he law, however, gives district courts broad latitude to grant protective orders to 2( 3 prevent disclosure of materials for many types of development, or commercial 4 information"); Motorola, Inc. v. lnterdigital Tech. Corp., No. Civ.A. 93-488-LON, 5 1994 WL 16189689, at *2(D. Del. Dec. 19, 1994)("Courts dress technical 6 information with a heavy cloak ofjudicial protection because ofthe threat of serious 7 ~ economic injury"). 8 The parties agree that in the course of discovery and presenting evidence in 9 this case, certain documents and information pertaining to Verizon Wireless's 10 network performance, business plans,,and internal decision-making are likely to 1 1 reveal sensitive trade secrets or other confidential research and development within 12 the meaning of Federal Rule of Civil Procedure 26(c). Disclosure of such 13 information in the absence of a protective order would result in serious economic 14 and commercial injury to Verizon Wireless and infringe on the privacy interests of 15 third parties. 16 Accordingly, the Parties have stipulated to this Protective Order pursuant to 17 Rule 26(c) and agree that good cause exists for entry of a protective order. 18 19 IT IS SO ORDERED. 2 0 21 Date: ~D I 22 JUHN E. MCDERMOTT 23 4 2 2s U.S. IVIAGI~TRAT ~r~~ 2 6 27 28 PROPOSED]PROTECTIVE ORDER [ ~_. L ~:l(-CV-U:i(/ti-USA-JtM uocument ~l-1 ~uea uyiu iil i Nage lu of lu Nage i u # :146 ACKNOWLEDGEMENT 1 2 I acknowledge receipt of a copy of the foregoing Protective Order (the "Order"), 3 4 confirm that I have read it, and agree that my receipt of Confidential Information 5 as defined therein shall be subject to and governed by the terms of the Order. I 6 further acknowledge and consent to the continuing jurisdiction of the issuing Court 7 8 for the purposes of enforcing and remedying any violations ofthe Order. 9 10 11 Dated: Signature of recipient 12 13 Printed name of recipient 14 15 16 17 18 19 2 0 21 22 23 24 25 2 6 27 28 PROPOSED]PROTECTIVE ORDER [

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