Rumble, Inc. v. The Daily Mail and General Trust PLC, et al

Filing 35

STIPULATED PROTECTIVE ORDER 34 by Magistrate Judge Steve Kim. (clee)

1 Scott S. Humphreys
[e-mail]
2 Ballard Spahr LLP
2029 Century Park East, Suite 800
3 Los Angeles, CA 90067-2909
Telephone: [phone]
4 Facsimile: 424.204.4350
5 Cameron Stracher (admitted pro hac vice)
[e-mail]
6 BALLARD SPAHR LLP
1675 Broadway, 19th Floor
7 New York, NY 10019
Telephone: [phone]
8 Facsimile: 212.223.1942
9 Attorneys for Defendants
Associated Newspapers Ltd. dba The
10 Daily Mail, Dailymail.com and Mailonline
11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13
14 Rumble, Inc.,
15
16

Case No. 2:17-cv-04977 PSG (SKx)
Plaintiff,

STIPULATED PROTECTIVE
ORDER

v.

17 The Daily Mail and General Trust, PLC
First Amended Complaint Filed:
18 and its subsidiary Associated Newspapers August 25, 2017
Ltd. dba The Daily Mail, Dailymail.com
19 and Mailonline, and Does 1-10, inclusive,
Defendants.

20
21
22
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STIPULATED PROTECTIVE ORDER

1 1.

A.

PURPOSES AND LIMITATIONS

2

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

3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth
11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
12 file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a
14 party seeks permission from the court to file material under seal.
15
16

B.

GOOD CAUSE STATEMENT

17

Discovery in this action will likely involve confidential business information,

18 including sales revenue and profits, customer and pricing lists and other valuable
19 commercial, financial, technical and/or proprietary information for which special
20 protection from public disclosure and from use for any purpose other than
21 prosecution of this action is warranted. Accordingly, to expedite the flow of
22 information, to facilitate the prompt resolution of disputes over confidentiality of
23 discovery materials, to adequately protect information the parties are entitled to
24 keep confidential, to ensure that the parties are permitted reasonable necessary uses
25 of such material in preparation for and in the conduct of trial, to address their
26 handling at the end of the litigation, and serve the ends of justice, a protective order
27 for such information is justified in this matter. It is the intent of the parties that
28 information will not be designated as confidential for tactical reasons and that
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1 nothing be so designated without a good faith belief that it has been maintained in a
2 confidential, non-public manner, and there is good cause why it should not be part
3 of the public record of this case.
4
5 2.

DEFINITIONS

6

2.1.

Action: this pending federal law suit.

7

2.2.

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

8 designation of information or items under this Order.
9

2.3.

“CONFIDENTIAL” Information or Items: information (regardless of

10 how it is generated, stored or maintained) or tangible things that qualify for
11 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
12 the Good Cause Statement.
13

2.4.

Counsel: Outside Counsel of Record and House Counsel (as well as

14 their support staff).
15

2.5.

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

16 items that it produces in disclosures or in responses to discovery as
17 “CONFIDENTIAL.”
18

2.6.

Disclosure or Discovery Material: all items or information, regardless

19 of the medium or manner in which it is generated, stored, or maintained (including,
20 among other things, testimony, transcripts, and tangible things), that are produced or
21 generated in disclosures or responses to discovery in this matter.
22

2.7.

Expert: a person with specialized knowledge or experience in a matter

23 pertinent to the litigation who has been retained by a Party or its counsel to serve as
24 an expert witness or as a consultant in this Action.
25

2.8.

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

26 House Counsel does not include Outside Counsel of Record or any other outside
27 counsel.
28
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2.9.

1

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

2 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

3

4 to this Action but are retained to represent or advise a party to this Action and have
5 appeared in this Action on behalf of that party or are affiliated with a law firm which
6 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,

7

8 employees, consultants, retained experts, and Outside Counsel of Record (and their
9 support staffs).
2.12. Producing Party: a Party or Non-Party that produces Disclosure or

10

11 Discovery Material in this Action.
2.13. Professional Vendors: persons or entities that provide litigation support

12

13 services (e.g., photocopying, videotaping, translating, preparing exhibits or
14 demonstrations, and organizing, storing, or retrieving data in any form or medium)
15 and their employees and subcontractors.
2.14. Protected Material: any Disclosure or Discovery Material that is

16

17 designated as “CONFIDENTIAL.”
2.15. Receiving Party: a Party that receives Disclosure or Discovery Material

18

19 from a Producing Party.
20
21 3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

22

23 Protected Material (as defined above), but also (1) any information copied or
24 extracted from Protected Material; (2) all copies, excerpts, summaries, or
25 compilations of Protected Material; and (3) any testimony, conversations, or
26 presentations by Parties or their Counsel that might reveal Protected Material.
27

Any use of Protected Material at trial shall be governed by the orders of the

28 trial judge. This Order does not govern the use of Protected Material at trial.
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1 4.

DURATION

2

Even after final disposition of this litigation, the confidentiality obligations

3 imposed by this Order shall remain in effect until a Designating Party agrees
4 otherwise in writing or a court order otherwise directs. Final disposition shall be
5 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
6 with or without prejudice; and (2) final judgment herein after the completion and
7 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
8 including the time limits for filing any motions or applications for extension of
9 time pursuant to applicable law.
10
11 5.

DESIGNATING PROTECTED MATERIAL

12

5.1.

Exercise of Restraint and Care in Designating Material for Protection.

13 Each Party or Non-Party that designates information or items for protection under
14 this Order must take care to limit any such designation to specific material that
15 qualifies under the appropriate standards. The Designating Party must designate
16 for protection only those parts of material, documents, items, or oral or written
17 communications that qualify so that other portions of the material, documents,
18 items, or communications for which protection is not warranted are not swept
19 unjustifiably within the ambit of this Order.
20

Mass, indiscriminate, or routinized designations are prohibited. Designations

21 that are shown to be clearly unjustified or that have been made for an improper
22 purpose (e.g., to unnecessarily encumber the case development process or to
23 impose unnecessary expenses and burdens on other parties) may expose the
24 Designating Party to sanctions.
25

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

26 designated for protection do not qualify for protection, that Designating Party must
27 promptly notify all other Parties that it is withdrawing the inapplicable designation.
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1

5.2.

Manner and Timing of Designations. Except as otherwise provided in

2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
4 under this Order must be clearly so designated before the material is disclosed or
5 produced.
6

Designation in conformity with this Order requires:
(a)

7

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

8 documents, but excluding transcripts of depositions or other pretrial or trial
9 proceedings), that the Producing Party affix at a minimum, the legend
10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
11 contains protected material. If only a portion or portions of the material on a page
12 qualifies for protection, the Producing Party also must clearly identify the protected
13 portion(s) (e.g., by making appropriate markings in the margins).
(b)

14

for testimony given in depositions that the Designating Party

15 identify the Disclosure or Discovery Material on the record, before the close of the
16 deposition all protected testimony.
(c)

17

for information produced in some form other than documentary

18 and for any other tangible items, that the Producing Party affix in a prominent place
19 on the exterior of the container or containers in which the information is stored the
20 legend “CONFIDENTIAL.” If only a portion or portions of the information
21 warrants protection, the Producing Party, to the extent practicable, shall identify the
22 protected portion(s).
23

5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

24 failure to designate qualified information or items does not, standing alone, waive
25 the Designating Party’s right to secure protection under this Order for such material.
26 Upon timely correction of a designation, the Receiving Party must make reasonable
27 efforts to assure that the material is treated in accordance with the provisions of this
28 Order.
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1
2 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

3

6.1.

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

4 designation of confidentiality at any time that is consistent with the Court’s
5 Scheduling Order.
6.2.

6

Meet and Confer. The Challenging Party shall initiate the dispute

7 resolution process under Local Rule 37.1 et seq.
6.3.

8

The burden of persuasion in any such challenge proceeding shall be on

9 the Designating Party. Frivolous challenges, and those made for an improper
10 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
11 parties) may expose the Challenging Party to sanctions. Unless the Designating
12 Party has waived or withdrawn the confidentiality designation, all parties shall
13 continue to afford the material in question the level of protection to which it is
14 entitled under the Producing Party’s designation until the Court rules on the
15 challenge.
16
17 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

18

7.1.

Basic Principles. A Receiving Party may use Protected Material that

19 is disclosed or produced by another Party or by a Non-Party in connection with this
20 Action only for prosecuting, defending, or attempting to settle this Action.
21 Such Protected Material may be disclosed only to the categories of persons and
22 under the conditions described in this Order. When the Action has been terminated,
23 a Receiving Party must comply with the provisions of section 13 below (FINAL
24 DISPOSITION).
25

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

26 location and in a secure manner that ensures that access is limited to the persons
27 authorized under this Order.
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1

7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless

2 otherwise ordered by the court or permitted in writing by the Designating Party, a
3 Receiving Party may disclose any information or item designated
4 “CONFIDENTIAL” only to:
5

(a)

the Receiving Party’s Outside Counsel of Record in this Action, as

6 well as employees of said Outside Counsel of Record to whom it is reasonably
7 necessary to disclose the information for this Action;
8

(b)

the officers, directors, and employees (including House Counsel) of

9 the Receiving Party to whom disclosure is reasonably necessary for this Action;
10

(c)

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

11 disclosure is reasonably necessary for this Action and who have signed the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13

(d)

the court and its personnel;

14

(e)

court reporters and their staff;

15

(f)

professional jury or trial consultants, mock jurors, and Professional

16 Vendors to whom disclosure is reasonably necessary for this Action and who have
17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
18

(g)

the author or recipient of a document containing the information or

19 a custodian or other person who otherwise possessed or knew the information;
20

(h)

during their depositions, witnesses, and attorneys for witnesses, in

21 the Action to whom disclosure is reasonably necessary provided: (1) the deposing
22 party requests that the witness sign the form attached as Exhibit 1 hereto; and
23 (2) they will not be permitted to keep any confidential information unless they sign
24 the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
25 agreed by the Designating Party or ordered by the court. Pages of transcribed
26 deposition testimony or exhibits to depositions that reveal Protected Material may
27 be separately bound by the court reporter and may not be disclosed to anyone except
28 as permitted under this Stipulated Protective Order; and
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(i)

1

any mediator or settlement officer, and their supporting personnel,

2 mutually agreed upon by any of the parties engaged in settlement discussions.
3
4 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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

6

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

9

promptly notify in writing the Designating Party. Such

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

11

promptly notify in writing the party who caused the subpoena or

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

15

cooperate with respect to all reasonable procedures sought to be

16 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

17

18 the subpoena or court order shall not produce any information designated in this
19 action as “CONFIDENTIAL” before a determination by the court from which the
20 subpoena or order issued, unless the Party has obtained the Designating Party’s
21 permission. The Designating Party shall bear the burden and expense of seeking
22 protection in that court of its confidential material and nothing in these provisions
23 should be construed as authorizing or encouraging a Receiving Party in this Action
24 to disobey a lawful directive from another court.
25 ////
26 ////
27 ////
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1 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

2 PRODUCED IN THIS LITIGATION
(a)

3

The terms of this Order are applicable to information produced

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

8

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

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

12

promptly notify in writing the Requesting Party and the

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

15

promptly provide the Non-Party with a copy of the

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

18

make the information requested available for inspection

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

20

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

21 within 14 days of receiving the notice and accompanying information, the
22 Receiving Party may produce the Non-Party’s confidential information responsive
23 to the discovery request. If the Non-Party timely seeks a protective order, the
24 Receiving Party shall not produce any information in its possession or control that is
25 subject to the confidentiality agreement with the Non-Party before a determination
26 by the court. Absent a court order to the contrary, the Non-Party shall bear the
27 burden and expense of seeking protection in this court of its Protected Material.
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1 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 persons to whom unauthorized disclosures were made of all the terms of this Order,
8 and (d) request such person or persons to execute the “Acknowledgment and
9 Agreement to Be Bound” that is attached hereto as Exhibit A.
10
11 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

12 PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

13

14 inadvertently produced material is subject to a claim of privilege or other protection,
15 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
16 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
17 procedure may be established in an e-discovery order that provides for production
18 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e),
19 insofar as the parties reach an agreement on the effect of disclosure of a
20 communication or information covered by the attorney-client privilege or work
21 product protection, the parties may incorporate their agreement in the stipulated
22 protective order submitted to the court.
23
24 12.

MISCELLANEOUS

25

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

26 person to seek its modification by the Court in the future.
27

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

28 Protective Order no Party waives any right it otherwise would have to object to
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STIPULATED PROTECTIVE ORDER

1 disclosing or producing any information or item on any ground not addressed in this
2 Stipulated Protective Order. Similarly, no Party waives any right to object on any
3 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

4

5 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
6 only be filed under seal pursuant to a court order authorizing the sealing of the
7 specific Protected Material at issue. If a Party's request to file Protected Material
8 under seal is denied by the court, then the Receiving Party may file the information
9 in the public record unless otherwise instructed by the court.
10 13.

FINAL DISPOSITION

11

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

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

Any violation of this Order may be punished by any and all appropriate

2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4
5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
6

Dated: September 12, 2018

ZUBER LAWLER & DEL DUCA LLP

7
By:

8
9

Robert W. Dickerson
Robert W. Dickerson
Attorneys for Plaintiff,
RUMBLE, INC.

10
11
12 Dated: September 12, 2018
13

BALLARD SPAHR LLP

14

By:

15

Scott S. Humphreys
Scott S. Humphreys
Attorneys for Defendant,
ASSOCIATED NEWSPAPERS LTD.

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17
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19
20

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

21
22
23

DATED: _______________
September 13, 2018

24

__________________________
Honorable Steve Kim
United States Magistrate Judge

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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________________ [print or type full name],
of __________________________________________ [print or type full address],
declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for
the Central District of California on __________________[date] in the case of
Rumble, Inc. v. The Daily Mail and General Trust PLC et al., Case No. 2:17-cv04977 PSG (SKx). I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to so
comply could expose me to sanctions and punishment in the nature of contempt.
I solemnly promise that I will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in
strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action. I hereby appoint __________________________
[print or type full name] of _______________________________________
[print or type full address and telephone number] as my California agent for
service of process in connection with this action or any proceedings related to
enforcement of this Stipulated Protective Order.

23
24 Date:_______________________________
25 City and State where sworn and signed: __________________________________
26 Printed name: _______________________________________________
27 Signature: _________________________________________________
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