Argus Marine Ventures, Ltd et al v. Zetta Jet USA, Inc. et al

Filing 73

STIPULATED PROTECTIVE ORDER 72 by Magistrate Judge Steve Kim re Order. (SEE ORDER FOR DETAILS). (clee)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 ARGUS MARINE VENTURES, LTD., et al., Plaintiffs, v. Case No. 2:17-cv-05024-JFW-SK STIPULATED PROTECTIVE ORDER [Discovery Document: Referred to Magistrate Judge Steve Kim] ZETTA JET USA, Inc., et al., Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 2 1. A. PURPOSES AND LIMITATIONS Discovery in this action may involve the 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 B. GOOD CAUSE STATEMENT 16 This action may involve trade secrets, customer and pricing lists and other 17 valuable research, development, commercial, financial, technical and/or proprietary 18 information for which special protection from public disclosure and from use for 19 any purpose other than prosecution of this action may be warranted. Such 20 confidential and proprietary materials and information consist of, among other 21 things, confidential business or financial information, information regarding 22 confidential business practices, or other confidential research, development, or 23 commercial information (including information implicating privacy rights of third 24 parties), information otherwise generally unavailable to the public, or which may be 25 privileged or otherwise protected from disclosure under state or federal statutes, 26 court rules, case decisions, or common law. Accordingly, to expedite the flow of 27 information, to facilitate the prompt resolution of disputes over confidentiality of 28 discovery materials, to adequately protect information the parties are entitled to -1- [PROPOSED] STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 keep confidential, to ensure that the parties are permitted reasonable necessary uses 2 of such material in preparation for and in the conduct of trial, to address their 3 handling at the end of the litigation, and serve the ends of justice, a protective order 4 for such information is justified in this matter. It is the intent of the parties that 5 information will not be designated as confidential for tactical reasons and that 6 nothing be so designated without a good faith belief that it has been maintained in a 7 confidential, non-public manner, and there is good cause why it should not be part 8 of the public record of this case. 9 2. 10 DEFINITIONS 2.1 Action: this pending federal law suit captioned above as Argus Marine 11 Ventures, Ltd., et al. v. Zetta Jet Usa, Inc., et al., Case No. 2:17-cv-05024-JFW-SK 12 (C.D. Cal. 2017). 13 14 15 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 16 how it is generated, stored or maintained) or tangible things that qualify for 17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 18 the Good Cause Statement. 19 20 21 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 22 items that it produces in disclosures or in responses to discovery as 23 “CONFIDENTIAL.” 24 2.6 Disclosure or Discovery Material: all items or information, regardless of 25 the medium or manner in which it is generated, stored, or maintained (including, 26 among other things, testimony, transcripts, and tangible things), that are produced 27 or generated in disclosures or responses to discovery in this matter. 28 -2- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 2.7 Expert: a person with specialized knowledge or experience in a matter 2 pertinent to the litigation who has been retained by a Party or its counsel to serve as 3 an expert witness or as a consultant in this Action. 4 2.8 House Counsel: attorneys who are employees of a party to this Action. 5 House Counsel does not include Outside Counsel of Record or any other outside 6 counsel. 7 8 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 9 2.10 Outside Counsel of Record: attorneys who are not employees of a party 10 to this Action but are retained to represent or advise a party to this Action and have 11 appeared in this Action on behalf of that party or are affiliated with a law firm 12 which has appeared on behalf of that party, and includes support staff. 13 2.11 Party: any party to this Action, including all of its officers, directors, 14 employees, consultants, retained experts, and Outside Counsel of Record (and their 15 support staffs). 16 17 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 18 2.13 Professional Vendors: persons or entities that provide litigation support 19 services (e.g., photocopying, videotaping, translating, preparing exhibits or 20 demonstrations, and organizing, storing, or retrieving data in any form or medium) 21 and their employees and subcontractors. 22 23 2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 24 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 25 from a Producing Party. 26 3. SCOPE 27 The protections conferred by this Stipulation and Order cover not only 28 Protected Material (as defined above), but also (1) any information copied or -3- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 extracted from Protected Material; (2) all copies, excerpts, summaries, or 2 compilations of Protected Material; and (3) any testimony, conversations, or 3 presentations by Parties or their Counsel that might reveal Protected Material. 4 Any use of Protected Material at trial shall be governed by the orders of the 5 trial judge. This Order does not govern the use of Protected Material at trial. 6 4. 7 DURATION Even after final disposition of this litigation, the confidentiality obligations 8 imposed by this Order shall remain in effect until a Designating Party agrees 9 otherwise in writing or a court order otherwise directs. Final disposition shall be 10 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 11 with or without prejudice; and (2) final judgment herein after the completion and 12 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 13 including the time limits for filing any motions or applications for extension of time 14 pursuant to applicable law. 15 5. 16 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or Non-Party that designates information or items for protection under 18 this Order must take care to limit any such designation to specific material that 19 qualifies under the appropriate standards. The Designating Party must designate for 20 protection only those parts of material, documents, items, or oral or written 21 communications that qualify so that other portions of the material, documents, 22 items, or communications for which protection is not warranted are not swept 23 unjustifiably within the ambit of this Order. 24 Mass, indiscriminate, or routinized designations are prohibited. Designations 25 that are shown to be clearly unjustified or that have been made for an improper 26 purpose (e.g., to unnecessarily encumber the case development process or to 27 impose unnecessary expenses and burdens on other parties) may expose the 28 Designating Party to sanctions. -4- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this 5 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 10 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 14 contains protected material. If only a portion or portions of the material on a page 15 qualifies for protection, the Producing Party also must clearly identify the protected 16 portion(s) (e.g., by making appropriate markings in the margins). 17 A Party or Non-Party that makes original documents available for 18 inspection need not designate them for protection until after the inspecting Party 19 has indicated which documents it would like copied and produced. During the 20 inspection and before the designation, all of the material made available for 21 inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 22 identified the documents it wants copied and produced, the Producing Party must 23 determine which documents, or portions thereof, qualify for protection under this 24 Order. Then, before producing the specified documents, the Producing Party must 25 affix the “CONFIDENTIAL legend” to each page that contains Protected Material. 26 If only a portion or portions of the material on a page qualifies for protection, the 27 Producing Party also must clearly identify the protected portion(s) (e.g., by making 28 appropriate markings in the margins). -5- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 (b) for testimony given in depositions that the Designating Party 2 identify the Disclosure or Discovery Material on the record, before the close of the 3 deposition all protected testimony. 4 (c) for information produced in some form other than documentary 5 and for any other tangible items, that the Producing Party affix in a prominent 6 place on the exterior of the container or containers in which the information is 7 stored the legend “CONFIDENTIAL.” If only a portion or portions of the 8 information warrants protection, the Producing Party, to the extent practicable, 9 shall identify the protected portion(s). 10 (d) for Inspection of Things or Premises, the Producing Party shall 11 state in writing prior to the inspection that “CONFIDENTIAL” information or 12 material will be revealed. 13 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 14 failure to designate qualified information or items does not, standing alone, waive 15 the Designating Party’s right to secure protection under this Order for such 16 material. Upon timely correction of a designation, the Receiving Party must make 17 reasonable efforts to assure that the material is treated in accordance with the 18 provisions of this Order. 19 6. 20 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 21 designation of confidentiality at any time that is consistent with the Court’s 22 Scheduling Order. 23 24 25 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 The burden of persuasion in any such challenge proceeding shall be on 26 the Designating Party. Frivolous challenges, and those made for an improper 27 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 28 parties) may expose the Challenging Party to sanctions. Unless the Designating -6- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 Party has waived or withdrawn the confidentiality designation, all parties shall 2 continue to afford the material in question the level of protection to which it is 3 entitled under the Producing Party’s designation until the Court rules on the 4 challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is 7 disclosed or produced by another Party or by a Non-Party in connection with this 8 Action only for prosecuting, defending, or attempting to settle this Action. Such 9 Protected Material may be disclosed only to the categories of persons and under the 10 conditions described in this Order. When the Action has been terminated, a 11 Receiving Party must comply with the provisions of section 13 below (FINAL 12 DISPOSITION). 13 Protected Material must be stored and maintained by a Receiving Party at a 14 location and in a secure manner that ensures that access is limited to the persons 15 authorized under this Order. 16 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 17 otherwise ordered by the court or permitted in writing by the Designating Party, a 18 Receiving Party may disclose any information or item designated 19 “CONFIDENTIAL” only to: 20 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 21 well as employees of said Outside Counsel of Record to whom it is 22 reasonably necessary to disclose the information for this Action; 23 (b) the officers, directors, and employees (including House Counsel) of 24 the Receiving Party to whom disclosure is reasonably necessary for this 25 Action; 26 (c) Experts (as defined in this Order) of the Receiving Party to whom 27 disclosure is reasonably necessary for this Action and who have signed the 28 “Acknowledgment and Agreement to Be Bound” (Exhibit A); -7- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 (d) the court and its personnel; 2 (e) court reporters and their staff; 3 (f) professional jury or trial consultants, mock jurors, and Professional 4 Vendors to whom disclosure is reasonably necessary for this Action and who 5 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 6 A); 7 (g) the author or recipient of a document containing the information or 8 a custodian or other person who otherwise possessed or knew the 9 information; 10 (h) during their depositions, witnesses, and attorneys for witnesses, in 11 the Action to whom disclosure is reasonably necessary provided: (1) the 12 deposing party requests that the witness sign the form attached as Exhibit 1 13 hereto; and (2) they will not be permitted to keep any confidential 14 information unless they sign the “Acknowledgment and Agreement to Be 15 Bound” (Exhibit A), unless otherwise agreed by the Designating Party or 16 ordered by the court. Pages of transcribed deposition testimony or exhibits to 17 depositions that reveal Protected Material may be separately bound by the 18 court reporter and may not be disclosed to anyone except as permitted under 19 this Stipulated Protective Order; and 20 (i) any mediator or settlement officer, and their supporting personnel, 21 mutually agreed upon by any of the parties engaged in settlement 22 discussions. 23 8. 24 IN OTHER LITIGATION 25 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a Party is served with a subpoena or a court order issued in other litigation 26 that compels disclosure of any information or items designated in this Action as 27 “CONFIDENTIAL,” that Party must: 28 -8- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 2 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 3 (b) promptly notify in writing the party who caused the subpoena or order to 4 issue in the other litigation that some or all of the material covered by the subpoena 5 or order is subject to this Protective Order. Such notification shall include a copy of 6 this Stipulated Protective Order; and 7 (c) cooperate with respect to all reasonable procedures sought to be pursued 8 by the Designating Party whose Protected Material may be affected. If the 9 Designating Party timely seeks a protective order, the Party served with the 10 subpoena or court order shall not produce any information designated in this action 11 as “CONFIDENTIAL” before a determination by the court from which the 12 subpoena or order issued, unless the Party has obtained the Designating Party’s 13 permission. The Designating Party shall bear the burden and expense of seeking 14 protection in that court of its confidential material and nothing in these provisions 15 should be construed as authorizing or encouraging a Receiving Party in this Action 16 to disobey a lawful directive from another court. 17 9. 18 PRODUCED IN THIS LITIGATION 19 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE (a) The terms of this Order are applicable to information produced by a Non- 20 Party in this Action and designated as “CONFIDENTIAL.” Such information 21 produced by Non-Parties in connection with this litigation is protected by the 22 remedies and relief provided by this Order. Nothing in these provisions should be 23 construed as prohibiting a Non-Party from seeking additional protections. 24 (b) In the event that a Party is required, by a valid discovery request, to 25 produce a Non-Party’s confidential information in its possession, and the Party is 26 subject to an agreement with the Non-Party not to produce the Non-Party’s 27 confidential information, then the Party shall: 28 -9- STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 (1) promptly notify in writing the Requesting Party and the Non-Party 2 that some or all of the information requested is subject to a confidentiality 3 agreement with a Non-Party; 4 (2) promptly provide the Non-Party with a copy of the Stipulated 5 Protective Order in this Action, the relevant discovery request(s), and a 6 reasonably specific description of the information requested; and 7 (3) make the information requested available for inspection by the 8 Non-Party, if requested. 9 (c) If the Non-Party fails to seek a protective order from this court within 14 10 days of receiving the notice and accompanying information, the Receiving Party 11 may produce the Non-Party’s confidential information responsive to the discovery 12 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 13 not produce any information in its possession or control that is subject to the 14 confidentiality agreement with the Non-Party before a determination by the court. 15 Absent a court order to the contrary, the Non-Party shall bear the burden and 16 expense of seeking protection in this court of its Protected Material. 17 10. 18 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 21 writing the Designating Party of the unauthorized disclosures, (b) use its best 22 efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the 23 person or persons to whom unauthorized disclosures were made of all the terms of 24 this Order, and (d) request such person or persons to execute the “Acknowledgment 25 and Agreement to Be Bound” that is attached hereto as Exhibit A. 26 27 28 - 10 - STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 11. 2 PROTECTED MATERIAL 3 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other 5 protection, the obligations of the Receiving Parties are those set forth in Federal 6 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 7 whatever procedure may be established in an e-discovery order that provides for 8 production without prior privilege review. Pursuant to Federal Rule of Evidence 9 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 10 of a communication or information covered by the attorney-client privilege or work 11 product protection, the parties may incorporate their agreement in the stipulated 12 protective order submitted to the court. 13 12. 14 15 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. 16 12.2 Right to Assert Other Objections. By stipulating to the entry of this 17 Protective Order no Party waives any right it otherwise would have to object to 18 disclosing or producing any information or item on any ground not addressed in 19 this Stipulated Protective Order. Similarly, no Party waives any right to object on 20 any ground to use in evidence of any of the material covered by this Protective 21 Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material 24 may only be filed under seal pursuant to a court order authorizing the sealing of the 25 specific Protected Material at issue. If a Party's request to file Protected Material 26 under seal is denied by the court, then the Receiving Party may file the information 27 in the public record unless otherwise instructed by the court and the Designating 28 Party shall be required to pay the Receiving Party’s reasonable costs and attorney’s - 11 - STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 fees relating to such failed request to file under seal. Notwithstanding the 2 foregoing, nothing herein shall modify the Parties’ obligations to comply with all 3 applicable Rules of Civil Procedure and the local rules of the Central District of 4 California, with respect to discovery disputes and related requests for sanctions. 5 13. 6 FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 7 days of a written request by the Designating Party, each Receiving Party must 8 return all Protected Material to the Producing Party or destroy such material. As 9 used in this subdivision, “all Protected Material” includes all copies, abstracts, 10 compilations, summaries, and any other format reproducing or capturing any of the 11 Protected Material. Whether the Protected Material is returned or destroyed, the 12 Receiving Party must submit a written certification to the Producing Party (and, if 13 not the same person or entity, to the Designating Party) by the 60 day deadline that 14 (1) identifies (by category, where appropriate) all the Protected Material that was 15 returned or destroyed and (2)affirms that the Receiving Party has not retained any 16 copies, abstracts, compilations, summaries or any other format reproducing or 17 capturing any of the Protected Material. Notwithstanding this provision, Counsel 18 are entitled to retain an archival copy of all pleadings, motion papers, trial, 19 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 20 and trial exhibits, expert reports, attorney work product, and consultant and expert 21 work product, even if such materials contain Protected Material. Any such archival 22 copies that contain or constitute Protected Material remain subject to this Protective 23 Order as set forth in Section 4 (DURATION). 24 14. 25 measures including, without limitation, contempt proceedings and/or monetary 26 sanctions. Any violation of this Order may be punished by any and all appropriate 27 28 - 12 - STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: June 5, 2018 LARSON O’BRIEN LLP 4 5 By: /s/ PAUL A. RIGALI STEPHEN G. LARSON PAUL A. RIGALI LAUREN S. WULFE JARRAD L. WOOD Attorneys for Plaintiffs ARGUS MARINE VENTURES, LTD. and ARGUS BAHAMAS 6 7 8 9 10 11 Dated: June 5, 2018 12 MILLER MILLER MENTHE LLP ATTORNEYS AT LAW 13 By: /s/ COREY A. MILLER1 Corey A. Miller Adam I. Miller Attorneys For Defendants James Seagrim, Molly McEnery, and Matthew Walter 14 15 16 17 18 19 20 21 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. DATED: June 7, 2018 22 23 ____________________________________ 24 Honorable Steve Kim 25 United States Magistrate Judge 26 27 28 1 Pursuant to Local Rule 5-4.3.4(a)(2)(i), signatories hereby do attest that all signatories listed, and on whose behalf the filing is submitted, concur in the filing’s content and have authorized the filing. - 13 - STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that 6 was issued by the United States District Court for the Central District of California 7 on [date] in the case of Argus Marine Ventures, Ltd., et al. v. Zetta Jet Usa, Inc., et 8 al., Case No. 2:17-cv-05024-JFW-SK (C.D. Cal. 2017). I agree to comply with and 9 to be bound by all the terms of this Stipulated Protective Order and I understand 10 and acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose in 12 any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of this 14 Order. I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for the purpose of enforcing the terms of 16 this Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint __________________________ [print 18 or type full name] of _______________________________________ [print or type 19 full address and telephone number] as my California agent for service of process in 20 connection with this action or any proceedings related to enforcement of this 21 Stipulated Protective Order. 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: _______________________________ 25 Signature: __________________________________ 26 27 28 - 14 - STIPULATED PROTECTIVE ORDER; CASE NO: 2:17-CV-05024-JFW-SK

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