Aecom Energy and Construction, Inc. v. John Ripley et al

Filing 85

PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 83 . (See document for details). (mr)

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Diana M. Torres (SBN 162284)
[e-mail]
Yungmoon Chang (SBN 311673)
[e-mail]
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
AECOM ENERGY &
CONSTRUCTION, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AECOM ENERGY &
CONSTRUCTION, INC., an Ohio
Corporation,

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Plaintiff,

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v.
JOHN RIPLEY, et al.,
Defendants.

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CASE NO. 2:17-CV-05398RSWL(SSX)
JOINT STIPULATION RE
PROTECTIVE ORDER
[DISCOVERY DOCUMENT:
REFERRED TO MAGISTRATE
JUDGE SUZANNE H. SEGAL]
Complaint Filed Date: July 21, 2017
Judge:

Hon. Ronald S. W. Lew

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STIPULATED PROTECTIVE ORDER

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1. A. Purposes and Limitations
Plaintiff AECOM Energy & Construction, Inc. and Defendants MORRISON
KNUDSEN

CORPORATION,

MORRISON-KNUDSEN

MORRISON-KNUDSEN

SERVICES,

INC.,

COMPANY,

INC.,

MORRISON-KNUDSEN

INTERNATIONAL INC., and Gary Topolewski (collectively, the “Parties”), parties in
the above-captioned action (“Action”), have determined that discovery and briefing in

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this Action may result in the disclosure of confidential, proprietary, business, financial,

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or otherwise sensitive information. In the interest of protecting the legitimate business

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concerns of the Parties, their customers, business partners, and other third-parties, as

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well as the private information of individuals involved in this Action, the Parties hereby

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have stipulated to the following Protective Order (hereinafter “Order”) pursuant to Fed.

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R. Civ. P. 26(c). The parties further acknowledge, as set forth in Section 12.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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

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

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court to file material under seal.

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B. Good Cause Statement

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The parties in this Action are likely to seek discovery of trade secret, confidential

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and/or proprietary information for which special protection from public disclosure and

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

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anticipate that such confidential and proprietary materials and information may consist

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of, among other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential research, development,

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or commercial information (including information implicating privacy rights of third

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

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privileged or otherwise protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law. Accordingly, to expedite the flow of information,
to facilitate the prompt resolution of disputes over confidentiality of discovery
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STIPULATED PROTECTIVE ORDER

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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.
DEFINITIONS
2.1 Action: means this pending federal lawsuit captioned AECOM Energy &
Construction, Inc. v. Ripley, et al., Case No. 2:17-cv-05398-RSWL(SSx).
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.
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.
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STIPULATED PROTECTIVE ORDER

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2.8 House Counsel: attorneys who are employees of a Party to this Action.
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 in connection with this Action
and have appeared in this Action on behalf of that party or are affiliated with a law firm
which has appeared on behalf of that party, and their support staff.
2.11 Party: any party to this Action, including all of its officers, directors,
employees, consultants, and retained experts.
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.
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
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STIPULATED PROTECTIVE ORDER

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

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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 or portions 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 or portions 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).
(b) for testimony given in depositions that the Designating Party identify the
Disclosure or Discovery Material on the record, before the close of the deposition all
protected testimony, or serve written notice of the page and line of the confidential
deposition portions, within fourteen (14) days of receiving the final transcript. Until
the fourteen-day period to designate the deposition has passed, the entire transcript shall
be treated as “CONFIDENTIAL,” unless the Parties otherwise agree.
(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
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STIPULATED PROTECTIVE ORDER

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“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. 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 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 Civil Local Rule 37-1 et seq.
6.3 Burden of Persuasion. 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 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. 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
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STIPULATED PROTECTIVE ORDER

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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;
(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);
(d) the court and its personnel;
(e) court reporters and their staff;
(f) 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;
and
(h) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
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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STIPULATED PROTECTIVE 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 NonParty;
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STIPULATED PROTECTIVE ORDER

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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. Nothing herein shall bar a Receiving Party from
seeking a protective order against disclosure of information subject to a confidentiality
agreement.
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,
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STIPULATED PROTECTIVE ORDER

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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
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 Civil Local 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 Section 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
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STIPULATED PROTECTIVE ORDER

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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
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, internal email communications, 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).

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STIPULATED PROTECTIVE ORDER

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

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: January 2, 2018

DATED: January 2, 2018

By:

By:

/s/ Diana M. Torres

/s/ John Jahrmarkt

Diana M. Torres
Yungmoon Chang

John Jarhmarkt

KIRKLAND & ELLIS LLP
Attorneys for Plaintiff

JAHRMARKT & ASSOCIATES
Attorney for Defendants

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Local Rule 5-4.3.4 Attestation:
I attest that John Jahrmarkt concurs in the filing’s content and has authorized

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the filing.

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DATED: January 2, 2018

/s/ Diana M. Torres

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: 1/5/18

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_______________/S/_____________________

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Hon. Suzanne H. Segal

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United States Magistrate Judge
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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

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Stipulated Protective Order that was issued by the United States District Court for the

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Central District of California on ____________[date] in the case of AECOM Energy &

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Construction, Inc. v. Ripley, et al., Case No. 2:17-cv-05398-RSWL(SSx) (C.D. Cal.).

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

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise

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

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

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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the Central District of California for the purpose of enforcing the terms of this Stipulated

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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.
Date: ______________________________________
City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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STIPULATED PROTECTIVE ORDER