The Grantsmanship Center Inc v. Grant Writing USA Inc et al

Filing 18

STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation 17 . See document for details. (gk)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THE GRANTSMANSHIP CENTER, INC., Case No.: CV17-03980-R (AFMx)
12 a California Corporation,
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Plaintiff,

DISCOVERY MATTER

vs.

STIPULATED PROTECTIVE ORDER

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16 GRANT WRITING USA, INC., et al.,
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Complaint Filed: May 26, 2017
Trial Date: Not Yet Set

Defendants.

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Having considered the parties’ pleadings on file to date, and the parties’ jointly

20 submitted Stipulated Protective Order to govern the handling of information and
21 materials produced in the course of discovery or filed with the Court in this action, the
22 Court determines as follows:
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1.

A.

PURPOSES AND LIMITATIONS

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

25 proprietary or private information for which special protection from public disclosure
26 and from use for any purpose other than prosecuting this litigation may be warranted.
27 Accordingly, the parties hereby stipulate to and petition the Court to enter the following
28 Stipulated Protective Order. The parties acknowledge that this Order does not confer
STIPULATED PROTECTIVE ORDER

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blanket protections on all disclosures or responses to discovery and that the protection it
affords from public disclosure and use extends only to the limited information or items
that are entitled to confidential treatment under the applicable legal principles.
B.

GOOD CAUSE STATEMENT

This action is likely to involve trade secrets, customer and pricing lists and
other valuable research, development, commercial, financial, technical and/or
proprietary information for which special protection from public disclosure and from
use for any purpose other than prosecution of this action is warranted. Such confidential
and proprietary materials and information consist of, among other things, confidential
business or financial information, information regarding confidential business practices,
or other confidential research, development, or commercial information (including
information implicating privacy rights of third parties), information otherwise generally
unavailable to the public, or which may be privileged or otherwise protected from
disclosure under state or federal statutes, court rules, case decisions, or common law.
Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
disputes over confidentiality of discovery materials, to adequately protect information
the parties are entitled to keep confidential, to ensure that the parties are permitted
reasonable necessary uses of such material in preparation for and in the conduct of trial,
to address their handling at the end of the litigation, and serve the ends of justice, a
protective order for such information is justified in this matter. It is the intent of the
parties that information will not be designated as confidential for tactical reasons and
that nothing be so designated without a good faith belief that it has been maintained in a
confidential, non-public manner, and there is good cause why it should not be part of
the public record of this case.

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-2STIPULATED PROTECTIVE ORDER

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C.

ACKNOWLEDGMENT OF PROCEDURE FOR FILING
UNDER SEAL

The parties further acknowledge, as set forth in Section 12.3, below, that
this Stipulated Protective Order does not entitle them to file confidential information
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
the standards that will be applied when a party seeks permission from the court to file
material under seal.
There is a strong presumption that the public has a right of access to
judicial proceedings and records in civil cases. In connection with non-dispositive
motions, good cause must be shown to support a filing under seal. See Kamakana v.
City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
MotorsCorp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
require good cause showing), and a specific showing of good cause or compelling
reasons with proper evidentiary support and legal justification, must be made with
respect to Protected Material that a party seeks to file under seal. The parties’ mere
designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
without the submission of competent evidence by declaration, establishing that the
material sought to be filed under seal qualifies as confidential, privileged, or otherwise
protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial,
then compelling reasons, not only good cause, for the sealing must be shown, and the
relief sought shall be narrowly tailored to serve the specific interest to be protected. See
Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
each item or type of information, document, or thing sought to be filed or
introduced under seal in connection with a dispositive motion or trial, the party seeking
protection must articulate compelling reasons, supported by specific facts and legal
justification, for the requested sealing order. Again, competent evidence supporting the
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application to file documents under seal must be provided by declaration. Any
document that is not confidential, privileged, or otherwise protectable in its entirety will
not be filed under seal if the confidential portions can be redacted. If documents can be
redacted, then a redacted version for public viewing, omitting only the confidential,
privileged, or otherwise protectable portions of the document, shall be filed. Any
application that seeks to file documents under seal in their entirety should include an
explanation of why redaction is not feasible.

2.

DEFINITIONS
2.1

Action: Grantsmanship Center, Inc., v. Grant Writing USA,

Inc., USDC Case No.: CV17-03980-R (AFMx).
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information

(regardless of how it is generated, stored or maintained) or tangible things that qualify
for protection under Federal Rule of Civil Procedure 26(c), and as specified above in
the Good Cause Statement.
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 or items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.6

Disclosure or Discovery Material: all items or information,

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

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-4STIPULATED PROTECTIVE ORDER

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2.7

Expert: a person with specialized knowledge or experience in

a matter pertinent to the litigation who has been retained by a Party or its counsel to
serve as an expert witness or as a consultant in this Action.
2.8

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

Action. House Counsel does not include Outside Counsel of Record or any other
outside counsel.
2.9

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

association or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees
of a party to this Action but are retained to represent or advise a party to this Action and
have appeared in this Action on behalf of that party or are affiliated with a law firm that
has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers,
directors, employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).
2.12 Producing Party: a Party or Non-Party that produces
Disclosure or Discovery Material in this Action.
2.13 Professional Vendors:

persons or entities that provide

litigation support services (e.g., photocopying, videotaping, translating, preparing
exhibits or demonstrations, and organizing, storing, or retrieving data in any form or
medium) and their employees and subcontractors.
2.14 Protected Material:

any

Disclosure

or

Discovery

Material that is designated as “CONFIDENTIAL.”
2.15 Receiving Party:

a Party that receives Disclosure or

Discovery Material from a Producing Party.

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-5STIPULATED PROTECTIVE ORDER

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3.

SCOPE

The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or extracted
from Protected Material; (2) all copies, excerpts, summaries, or compilations of
Protected Material; and (3) any testimony, conversations, or presentations by Parties or
their Counsel that might reveal Protected Material. Any use of Protected Material at
trial shall be governed by the orders of the trial judge. This Order does not govern the
use of Protected Material at trial.
4.

DURATION

Once a case proceeds to trial, information that was designated as
CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
an exhibit at trial becomes public and will be presumptively available to all members of
the public, including the press, unless compelling reasons supported by specific factual
findings to proceed otherwise are made to the trial judge in advance of the trial.

See

Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
documents produced in discovery from “compelling reasons” standard when meritsrelated documents are part of court record). Accordingly, the terms of this protective
order do not extend beyond the commencement of the trial.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

Protection. Each Party or Non-Party that designates information or items for protection
under this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items or oral or written
communications that qualify so that other portions of the material, documents, items or
communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order. Mass, indiscriminate or routinized designations are
prohibited. 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 process
or to impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that
it designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
ordered, Disclosure or Discovery Material that qualifies for protection under this Order
must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a)

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

documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
contains protected material. If only a portion of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for
inspection need not designate them for protection until after the inspecting Party has
indicated which documents it would like copied and produced. During the inspection
and before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it
wants copied and produced, the Producing Party must determine which documents, or
portions thereof, qualify for protection under this Order. Then, before producing the
specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
each page that contains Protected Material. If only a portion of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party
identifies the Disclosure or Discovery Material on the record, before the close of the
deposition all protected testimony.
(c) for information produced in some form other than documentary
and for any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information warrants
protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an

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

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

a designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
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 on the Designating Party.

Frivolous challenges, and those made for an

improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other
-8STIPULATED PROTECTIVE ORDER

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parties) may expose the Challenging Party to sanctions. Unless the Designating Party
has waived or withdrawn the confidentiality designation, all parties shall continue to
afford the material in question the level of protection to which it is entitled under the
Producing Party’s designation until the Court rules on the challenge.
7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected

Material that is disclosed or produced by another Party or by a Non-Party in connection
with this Action only for prosecuting, defending or attempting to settle this Action.
Such Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the Action has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items.

Unless otherwise ordered by the court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a)

the Receiving Party’s Outside Counsel of Record in this

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

the officers, directors, and employees (including House

Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
Action;
(c)

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

whom disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)

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court reporters and their staff;

(f)

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the court and its personnel;

(e)

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professional jury or trial consultants, mock jurors, and

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

the author or recipient of a document containing the

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

during their depositions, witnesses, and attorneys for

witnesses, in the Action to whom disclosure is reasonably necessary provided: (1) the
deposing party requests that the witness sign the form attached as Exhibit 1 hereto; and
(2) they will not be permitted to keep any confidential information unless they sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
by the Designating Party or ordered by the court. Pages

of

transcribed

deposition

testimony or exhibits to depositions that reveal Protected Material may be separately
bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order; and
(i)

any mediator or settlement officer, and their supporting

personnel, mutually agreed upon by any of the parties engaged in settlement
discussions.
8.
PRODUCED IN

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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

litigation
that compels disclosure of any information or items designated in this
Action as “CONFIDENTIAL,” that Party must:
(a)

promptly notify in writing the Designating Party. Such

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

promptly notify in writing the party who caused the subpoena

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

cooperate with respect to all reasonable procedures sought to

be pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this Action to
disobey a lawful directive from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a)

The terms of this Order are applicable to information

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

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

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

promptly notify in writing the Requesting Party and the

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

promptly provide the Non-Party with a copy of the

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

make the information requested available for inspection

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

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

within 14 days of receiving the notice and accompanying information, the Receiving
Party may produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
produce any information in its possession or control that is subject to the confidentiality
agreement with the Non-Party before a determination by the court. Absent a court order
to the contrary, the Non-Party shall bear the burden and expense of seeking protection
in this court of its Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not authorized under
this Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to
retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of
this Order, and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the court.
12.

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

right of any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry
of this Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal
any Protected Material must comply with Local Civil Rule 79-5.

Protected

Material may only be filed under seal pursuant to a court order authorizing the sealing
of the specific Protected Material at issue. If a Party’s request to file Protected Material
under seal is denied by the court, then the Receiving Party may file the information in
the public record unless otherwise instructed by the court.
13.

FINAL DISPOSITION

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

VIOLATION

Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.

IT IS SO ORDERED.

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19 Dated: November 27, 2017
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By:
Hon. Manuel L. Real
U.S. District Court Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4 I,
[print or type full name], of [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order
6 that was issued by the United States District Court for the Central District of California
7 on [date] in the case of Grantsmanship Center, Inc., v. Grant Writing USA, Inc., USDC
8 Case No.: CV17-03980-R (AFMx). I agree to comply with and to be bound by all the
9 terms of this Stipulated Protective Order and I understand and acknowledge that failure
10 to so comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item that is
12 subject to this Stipulated Protective Order to any person or entity except in strict
13 compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 Central District of California for enforcing the terms of this Stipulated Protective Order,
16 even if such enforcement proceedings occur after termination of this action.
17 I hereby appoint [print or type full name] of [print or type full address and
18 telephone number] as my California agent for service of process in connection with
19 this action or any proceedings related to enforcement of this Stipulated Protective
20 Order.
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22 Date: ____________________
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City and State where sworn and signed: ___________________
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Printed name: ________________
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Signature: _____________________
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