Kan-man Lai v. Charter Communications, Inc et al
PROTECTIVE ORDER PURSUANT TO STIPULATION by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 25 . (see order for details) (hr)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
11 KAN-MAN LAI a/k/a ADA LAI,
CASE NO. 2:17-cv-06114 FMO (FFMx)
PROTECTIVE ORDER PURSUANT
14 CHARTER COMMUNICATIONS,
INC.; CREDIT PROTECTION
15 ASSOCIATION, L.P.; DOES 1-100,
Action Filed: August 17, 2017
A. PURPOSES AND LIMITATIONS
As the Parties have represented that discovery in this action is likely to
involve production of confidential, proprietary, or private information for which
special protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted, this Court enters the following
Protective Order. This Order does not confer blanket protections on all disclosures
or responses to discovery. 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. Further, as set forth in Section 12.3,
below, this Protective Order does not entitle the Parties to file confidential
information under seal. Rather, when the Parties seek permission from the court to
1 file material under seal, the Parties must comply with Civil Local Rule 79-5 and
2 with any pertinent orders of the assigned District Judge and Magistrate Judge.
B. GOOD CAUSE STATEMENT
In light of the nature of the claims and allegations in this case and the Parties’
5 representations that discovery in this case will involve the production of confidential
6 records, and in order to expedite the flow of information, to facilitate the prompt
7 resolution of disputes over confidentiality of discovery materials, to adequately
8 protect information the Parties are entitled to keep confidential, to ensure that the
9 Parties are permitted reasonable necessary uses of such material in connection with
10 this action, to address their handling of such material at the end of the litigation, and
11 to serve the ends of justice, a protective order for such information is justified in this
12 matter. The Parties shall not designate any information/documents as confidential
13 without a good faith belief that such information/documents have been maintained
14 in a confidential, non-public manner, and that there is good cause or a compelling
15 reason why it should not be part of the public record of this case.
Action: The instant action: Kan-Man Lai a/k/a Ada Lai v. Charter
18 Communications, Inc., et al. CASE NO. 2:17-cv-06114 FMO (FFMx).
Challenging Party: a Party or Non-Party that challenges the
20 designation of information or items under this Order.
“CONFIDENTIAL” Information or Items: information (regardless of
22 how it is generated, stored or maintained) or tangible things that qualify for
23 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
24 the Good Cause Statement.
Counsel: Outside Counsel of Record and House Counsel (as well as
26 their support staff).
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Designating Party: a Party or Non-Party that designates information or
that it produces in disclosures or in responses to discovery as
Disclosure or Discovery Material: all items or information, regardless
5 of the medium or manner in which it is generated, stored, or maintained (including,
6 among other things, testimony, transcripts, and tangible things), that are produced or
7 generated in disclosures or responses to discovery in this matter.
Expert: a person with specialized knowledge or experience in a matter
9 pertinent to the litigation who has been retained by a Party or its counsel to serve as
10 an expert witness or as a consultant in this Action.
House Counsel: attorneys who are employees of a Party to this Action.
12 House Counsel does not include Outside Counsel of Record or any other outside
Non-Party: any natural person, partnership, corporation, association, or
15 other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a
17 Party to this Action but are retained to represent or advise a Party to this Action and
18 have appeared in this Action on behalf of that Party or are affiliated with a law firm
19 which 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,
21 employees, consultants, retained experts, and Outside Counsel of Record (and their
22 support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
24 Discovery Material in this Action.
2.13 Professional Vendors:
persons or entities that provide litigation
26 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
27 demonstrations, and organizing, storing, or retrieving data in any form or medium)
28 and their employees and subcontractors.
2.14 Protected Material:
any Disclosure or Discovery Material that is
2 designated as “CONFIDENTIAL.”
2.15 Receiving Party:
a Party that receives Disclosure or Discovery
4 Material from a Producing Party.
The protections conferred by this Order cover not only Protected Material (as
7 defined above), but also (1) any information copied or extracted from Protected
8 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
9 and (3) any deposition testimony, conversations, or presentations by Parties or their
10 Counsel that might reveal Protected Material, other than during a court hearing or at
Any use of Protected Material during a court hearing or at trial shall be
13 governed by the orders of the presiding judge. This Order does not govern the use
14 of Protected Material during a court hearing or at trial.
Even after final disposition of this litigation, the confidentiality obligations
17 imposed by this Order shall remain in effect until a Designating Party agrees
18 otherwise in writing or a court order otherwise directs. Final disposition shall be
19 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
20 or without prejudice; and (2) final judgment herein after the completion and
21 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
22 including the time limits for filing any motions or applications for extension of time
23 pursuant to applicable law.
DESIGNATING PROTECTED MATERIAL
Exercise of Restraint and Care in Designating Material for Protection.
26 Each Party or Non-Party that designates information or items for protection under
27 this Order must take care to limit any such designation to specific material that
28 qualifies under the appropriate standards. The Designating Party must designate for
1 protection only those parts of material, documents, items, or oral or written
2 communications that qualify so that other portions of the material, documents,
3 items, or communications for which protection is not warranted are not swept
4 unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
6 that are shown to be clearly unjustified or that have been made for an improper
7 purpose (e.g., to unnecessarily encumber the case development process or to impose
8 unnecessary expenses and burdens on other Parties) may expose the Designating
9 Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
11 designated for protection do not qualify for protection, that Designating Party must
12 promptly notify all other Parties that it is withdrawing the inapplicable designation.
Manner and Timing of Designations. Except as otherwise provided in
14 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise
15 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
16 under this Order must be clearly so designated before the material is disclosed or
Designation in conformity with this Order requires:
for information in documentary form (e.g., paper or electronic
20 documents, but excluding transcripts of depositions), that the Producing Party affix
21 at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL
22 legend”), to each page that contains Protected Material. If only a portion or portions
23 of the material on a page qualifies for protection, the Producing Party also must
24 clearly identify the protected portion(s) (e.g., by making appropriate markings in the
A Party or Non-Party that makes original documents available for inspection
27 need not designate them for protection until after the inspecting Party has indicated
28 which documents it would like copied and produced. During the inspection and
1 before the designation, all of the material made available for inspection shall be
2 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
3 documents it wants copied and produced, the Producing Party must determine which
4 documents, or portions thereof, qualify for protection under this Order. Then, before
the specified documents, the Producing Party must affix the
6 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
7 portion or portions of the material on a page qualifies for protection, the Producing
8 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
9 markings in the margins).
(b) for testimony given in depositions that the Designating Party identifies
11 on the record, before the close of the deposition as protected testimony.
(c) for information produced in some form other than documentary and
13 for any other tangible items, that the Producing Party affix in a prominent place on
14 the exterior of the container or containers in which the information is stored the
15 legend “CONFIDENTIAL.” If only a portion or portions of the information
16 warrants protection, the Producing Party, to the extent practicable, shall identify the
17 protected portion(s).
Inadvertent Failures to Designate. If timely corrected, an inadvertent
19 failure to designate qualified information or items does not, standing alone, waive
20 the Designating Party’s right to secure protection under this Order for such material.
21 Upon timely correction of a designation, the Receiving Party must make reasonable
22 efforts to assure that the material is treated in accordance with the provisions of this
CHALLENGING CONFIDENTIALITY DESIGNATIONS
Timing of Challenges.
Any Party or Non-Party may challenge a
26 designation of confidentiality at any time that is consistent with the Court’s
27 Scheduling Order.
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Meet and Confer. The Challenging Party shall initiate the dispute
2 resolution process under Local Rule 37.1 et seq.
The burden of persuasion in any such challenge proceeding shall be on
4 the Designating Party. Frivolous challenges, and those made for an improper
5 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
6 parties) may expose the Challenging Party to sanctions. Unless the Designating
7 Party has waived or withdrawn the confidentiality designation, all parties shall
8 continue to afford the material in question the level of protection to which it is
9 entitled under the Producing Party’s designation until the Court rules on the
ACCESS TO AND USE OF PROTECTED MATERIAL
Basic Principles. A Receiving Party may use Protected Material that is
13 disclosed or produced by another Party or by a Non-Party in connection with this
14 Action only for prosecuting, defending, or attempting to settle this Action. Such
15 Protected Material may be disclosed only to the categories of persons and under the
16 conditions described in this Order. When the Action has been terminated, a
17 Receiving Party must comply with the provisions of Section 13 below.
Protected Material must be stored and maintained by a Receiving Party at a
19 location and in a secure manner that ensures that access is limited to the persons
20 authorized under this Order.
Disclosure of “CONFIDENTIAL” Information or Items. Unless
22 otherwise ordered by the court or permitted in writing by the Designating Party, a
24 “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
26 well as employees of said Outside Counsel of Record to whom it is reasonably
27 necessary to disclose the information for this Action;
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(b) the officers, directors, and employees (including House Counsel) of
2 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
4 disclosure is reasonably necessary for this Action and who have signed the
5 “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
9 Vendors to whom disclosure is reasonably necessary for this Action and who have
10 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
12 custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the
14 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
15 requests that the witness sign the “Acknowledgment and Agreement to Be Bound”
16 form attached as Exhibit A hereto; and (2) they will not be permitted to keep any
17 confidential information unless they sign the “Acknowledgment and Agreement to
18 Be Bound” attached as Exhibit A, unless otherwise agreed by the Designating Party
19 or ordered by the court. Pages of transcribed deposition testimony or exhibits to
20 depositions that reveal Protected Material may be separately bound by the court
21 reporter and may not be disclosed to anyone except as permitted under this
22 Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,
24 mutually agreed upon by any of the Parties engaged in settlement discussions.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
2 IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this Action as
5 “CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
7 shall include a copy of the subpoena or court order unless prohibited by law;
(b) promptly notify in writing the Party who caused the subpoena or order
9 to issue in the other litigation that some or all of the material covered by the
10 subpoena or order is subject to this Protective Order. Such notification shall include
11 a copy of this Protective Order; and
cooperate with respect to all reasonable procedures sought to be
13 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
15 the subpoena or court order shall not produce any information designated in this
16 action as “CONFIDENTIAL” before a determination by the court from which the
17 subpoena or order issued, unless the Party has obtained the Designating Party’s
18 permission, or unless otherwise required by the law or court order. The Designating
19 Party shall bear the burden and expense of seeking protection in that court of its
20 confidential material and nothing in these provisions should be construed as
21 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
22 directive from another court.
24 PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
26 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
27 produced by Non-Parties in connection with this litigation is protected by the
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1 remedies and relief provided by this Order. Nothing in these provisions should be
2 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
4 produce a Non-Party’s confidential information in its possession, and the Party is
5 subject to an agreement with the Non-Party not to produce the Non-Party’s
6 confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party
8 that some or all of the information requested is subject to a confidentiality
9 agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective
11 Order in this Action, the relevant discovery request(s), and a reasonably specific
12 description of the information requested; and
(3) make the information requested available for inspection by the
14 Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the process
16 called for by Local Rules 45-1 and 37-1, et seq. within fourteen (14) days of
17 receiving the notice and accompanying information or fails contemporaneously to
18 notify the Receiving Party that it has done so, the Receiving Party may produce the
19 Non-Party’s confidential information responsive to the discovery request.
20 unrepresented Non-Party fails to seek a protective order from this court within
21 fourteen (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 unless otherwise required by the law or court order. Absent a court
27 order to the contrary, the Non-Party shall bear the burden and expense of seeking
28 protection in this court of its Protected Material.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 Protective Order, the Receiving Party must immediately (a) notify in writing the
5 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
6 all unauthorized copies of the Protected Material, (c) inform the person or persons to
7 whom unauthorized disclosures were made of all the terms of this Order, and (d)
8 request such person or persons to execute the “Acknowledgment and Agreement to
9 Be Bound” that is attached hereto as Exhibit A.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11 PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
16 may be established in an e-discovery order that provides for production without
17 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
18 as the Parties reach an agreement on the effect of disclosure of a communication or
19 information covered by the attorney-client privilege or work product protection, the
20 Parties may incorporate their agreement into this Protective Order.
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
23 person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. No Party waives any right it
25 otherwise would have to object to disclosing or producing any information or item
26 on any ground not addressed in this Protective Order. Similarly, no Party waives
27 any right to object on any ground to use in evidence of any of the material covered
28 by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file any Protected
2 Material must first seek approval by the court to file the Protected Material under
3 seal in compliance with Civil Local Rule 79-5 and with any pertinent orders of the
4 assigned District Judge and Magistrate Judge. If a Party's request to file Protected
5 Material under seal is denied by the court, then the Receiving Party may file the
6 information in the public record unless otherwise instructed by the court.
After the final disposition of this Action, as defined in Section 4, within sixty
9 (60) days of a written request by the Designating Party, each Receiving Party must
10 return all Protected Material to the Producing Party or destroy such material. As
11 used in this subdivision, “all Protected Material” includes all copies, abstracts,
12 compilations, summaries, and any other format reproducing or capturing any of the
13 Protected Material. Whether the Protected Material is returned or destroyed, the
14 Receiving Party must submit a written certification to the Producing Party (and, if
15 not the same person or entity, to the Designating Party) by the 60 day deadline that
16 (1) identifies (by category, where appropriate) all the Protected Material that was
17 returned or destroyed and (2) affirms that the Receiving Party has not retained any
18 copies, abstracts, compilations, summaries or any other format reproducing or
19 capturing any of the Protected Material. Notwithstanding this provision, Counsel
20 are entitled to retain an archival copy of all pleadings, motion papers, trial,
21 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
22 and trial exhibits, expert reports, attorney work product, and consultant and expert
23 work product, even if such materials contain Protected Material. Any such archival
24 copies that contain or constitute Protected Material remain subject to this Protective
25 Order as set forth in Section 4.
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Any violation of this Order may be punished by any and all appropriate
2 measures including, without limitation, contempt proceedings and/or monetary
4 IT IS SO ORDERED.
6 DATED: April 13, 2018
/s/ Frederick F. Mumm
Honorable Frederick F. Mumm
United States Magistrate Judge
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Protective Order that was issued
7 by the United States District Court for the Central District of California on
8 _________________________ in the case of Kan-Man Lai a/k/a Ada Lai v. Charter
9 Communications, Inc., et al. CASE NO. 2:17-cv-06114 FMO (FFMx). I agree to
10 comply with and to be bound by all the terms of this Protective Order and I
11 understand and acknowledge that failure to so comply could expose me to sanctions
12 and punishment in the nature of contempt. I solemnly promise that I will not
13 disclose in any manner any information or item that is subject to this Protective
14 Order to any person or entity except in strict compliance with the provisions of this
I further agree to submit to the jurisdiction of the United States District Court
17 for the Central District of California for the purpose of enforcing the terms of this
18 Protective Order, even if such enforcement proceedings occur after termination of
19 this action.
I hereby appoint __________________________ [print or type full
20 name] of _______________________________________ [print or type full address
21 and telephone number] as my California agent for service of process in connection
22 with this action or any proceedings related to enforcement of this Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25 Printed name: _______________________________
27 Signature: __________________________________
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