Pacific American Fish Co., Inc. v. Linkfresh, Inc et al

Filing 28

PROTECTIVE ORDER Governing Confidential Information by Magistrate Judge Charles F. Eick re Stipulation for Protective Order 27 . (sp)

2:17-cv-06999-R-E Document 27-1 Filed 01/24/18 Page 1 of 12 Page ID #:466

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PACIFIC AMERICAN FISH CO.,
INC., an California corporation,
Plaintiff,

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v.

Case No.: 2:17-cv-06999-R-E
[Assigned to Honorable Manuel L. Real,
and 1VIagistrate Judge Frederick F. Eick]
[
Los Angeles Superior Court Case No.:
BC672402 Filed: August 15, 2017]

LINKFRESH,INC., a Delaware
corporation; and DOES 1-10,
inclusive,
Defendant.

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PROTECTIVE ORDER GOVERNING
CONFIDENTIAL INFORMATION

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Having reviewed the Joint Stipulation for Protective Order entered into between
plaintiffs, The Print Lab,Inc., Staci Stewart, Tommy Gelinas and Juan Flores

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collectively,"plaintiffs"), and defendant, Scottsdale Insurance Company
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4 "defendant") in the above-caption litigation pending before this Court(the
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Litigation"), this Court issues the following Protective Order Governing Confidential
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Information:

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1. This Protective Order governs the use of all produced documents, responses

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to interrogatories and requests for admissions, deposition transcripts, and any othe

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information, documents, objects or things, as well as any and all copies, abstracts,

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digests, notes, and summaries thereof, that have been or will be produced by any party

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or third-party (the "Producing Party") in this Litigation pursuant to the Federal Rules

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of Civil Procedure.

These materials are collectively referred to hereinafter as

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2.

Any Discovery Material produced by any party or third-party as part o

discovery in this Litigation may be designated by the Producing Party as

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a.

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Discovery Material that it produces in this Litigation which it believes in

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good faith constitutes, contains, reflects or discloses confidential, non-

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public research and analysis, development or commercial or personal

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information or Discovery Material protected by the attorney-client and/or

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work-product privileges, or other information for which a good faith

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claim of need of protection from disclosure can be made under the

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Federal Rules of Civil Procedure and/or other applicable law

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("Confidential Material").

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3.

The Producing Party may designate as "CONFIDENTIAL" any

No Discovery Material shall be marked "CONFIDENTIAL" if it:

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a.

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confidentiality prior to disclosure by the Producing Party, as evidenced

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by the receiving party's written records;

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b.

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having no obligation of confidentiality to the Producing Party with

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respect to such information;

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c.

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who had no access to such information before such development; or

Was known to the receiving party without obligation of

Is subsequently disclosed to the receiving party by a third-party

Is independently developed by employees) of the receiving party

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Is published or becomes generally known to the public throug

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d.

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means not constituting a breach of this Protective Order or an obligatio

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of confidentiality to the producing party.

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e.

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Receiving Party shall not become Confidential Information merely

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because the Producing Party produces copies stamped Confidential

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Information.

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4.

Furthermore, information already in the possession of the

Any Discovery Material that is produced during this Litigation

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voluntarily, in response to a discovery request, or pursuant to a Court Order, in oral,

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written, or other form, including but not limited to transcripts, e~ibits, answers to

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interrogatories, as well as any physical object, recording, electronic file, or other thing,

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that is asserted by the Producing Party to contain or constitute Confidential Material

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shall be so designated by the Producing Party.
Documents and Physical Items: If Confidential Material is

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a.

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contained in a document or other physical item, such documents and

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physical items shall be clearly and prominently marked on their face with

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the appropriate legend: "CONFIDENTIAL". When an item (such as a

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disk) containing more than one electronic file is produced, each electronic

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file on that disk that is confidential should be branded with the legend

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"CONFIDENTIAL" and have "CONFIDENTIAL" in the file

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file designated as such.

name of each

Transcripts: Deposition or other pretrial testimony may be

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b.

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designated as "Confidential" by (i) a statement on the record, by counsel,

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at the time of such disclosure, or (ii) written notice sent to all counsel of

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record for the parties within fifteen (15) business days after receipt of the

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transcript of the deposition or other pretrial testimony unless the parties

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agree to an extension of this time period for designation. Notwithstanding

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any provision of this subsection, Discovery Material
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referenced

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maintain

an

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during a deposition or other pretrial testimony shall.

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confidentiality designation accorded such material hereunder regardless of the

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designation of any part ofthe transcript.
Information in Other Forms: All Confidential Material not reduce

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c.

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to documentary, tangible, or physical forms or that cannot be

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conveniently designated shall be designated by the Producing Party

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by notifying all parties ofthe appropriate designation in writing.

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5.

In the absence of written permission from the Producing Party or court

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Order, Discovery Material designated as "CONFIDENTIAL" shall not be disclosed to

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any person other than the following individuals, who are each deemed a "Qualified

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Person" under this Paragraph:

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a.

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staff, including paralegals and clerical assistants;

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b.

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who are directly involved in, and whose access to such Discovery

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Material is reasonably required for, the management, prosecution,

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defense, or settlement of this Litigation or the supervision of counsel of

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record;

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c.

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are called to be deposed during discovery or trial, whether willingly or

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under subpoena issued by a court of competent jurisdiction over the

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witness;

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d.

stenographic, court reporting, or clerical personnel;

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e.

in-house counsel for the parties to this Litigation;

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f.

subject to the provisions of paragraph 7 below, experts and

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consultants and their staff who are employed for the purposes of this

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Litigation; and

counsel of record for parties to this Litigation and their support

parties and their representatives, officers, agents, and/or employees

party and non-party witnesses (whether percipient or expert) who

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the Court, including necessary secretarial, clerical, and suppo

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g.

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personnel assisting the Court;

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h.

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regulatory requirements, and

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Party to this Litigation.

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6.

regulatory authorities upon formal demand, or to satisfy legal o

commercial photocopying firms or ESI vendors employed by

The inadvertent or unintentional disclosure by the Producing Party o

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Confidential Material, regardless of whether the material was so designated at the time

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of disclosure, shall not be deemed a waiver in whole or in part ofthe Producing Party's

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claim of confidentiality, either as to the specific information disclosed or as to any

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other information relating to the same or related subject matter, provided that the

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Producing Party shall promptly upon discovery of the inadvertent or unintentional

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disclosure notify the receiving party in writing that the information is Confidential.

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Such notification shall constitute a designation of the information and thereby subject

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it to the provisions of this Protective Order. Disclosure by the receiving party of

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inadvertently or unintentionally disclosed Confidential Material prior to receipt of such

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notice shall not be deemed a violation of this Protective Order. However, those

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persons to whom disclosure was made are to be advised by the receiving party that the

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information is Confidential and must be treated in accordance with this Protective

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Order, and the receiving party must make a good faith effort to retrieve and return all

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copies of such inadvertently disclosed information which have been disseminated to

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unauthorized persons, including any notes, summaries, compilations or other

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documents concerning same.

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7.

No person described under Paragraphs 5(~ may access Discovery

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Material designated "CONFIDENTIAL" until such person agrees to be bound by the

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terms of the Protective Order by executing the undertaking in E~ibit A. Before any

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other person described in Paragraph 5 is shown any Discovery Material designated

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"CONFIDENTIAL",that person must be shown a copy ofthe Court's Protective Orde

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and instructed that he or she is bound by its provisions.

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8.

If a producing party inadvertently produces documents or other tangible

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items that it considers privileged or attorney work-product, in whole or in party, it ma

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retrieve such documents or items, or parts thereof, as follows:
the producing party must give written notice to all parties who

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a.

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received copies of the inadvertently produced document or material in

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question. This notice must state the nature of the producing party's claim

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that the inadvertently produced document is privileged or otherwise

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protected.

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b.

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of the inadvertently produced documents or material shall promptly

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return it to the producing party and destroy any other copies thereof. In

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the event that only portions of a document. or material are claimed to be

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privileged or otherwise protected, the producing party shall furnish

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redacted copies of such documents or material, removing only the parts)

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thereof claimed to be privileged or otherwise protected, to all parties.

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c.

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document or material challenges the producing party's claim of

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protection, the recipient of such notice may promptly move for an order

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compelling production of such documents or material on the ground that

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the claim of protection is not well founded. However, the party moving

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to compel cannot contend that the producing party waived the protection

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by the inadvertent production. If Discovery Material subject to a claim of

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attorney-client privilege, work product protection, or any other privilege

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or immunity is inadvertently produced, such production shall in no way

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prejudice or otherwise constitute a waiver of, or estoppel as to, any claim

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of privilege, work product protection, or other ground for withholding

Upon receipt of such notice, all parties who have received copies

If a party receiving notice of an inadvertent production of a

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production to which any Producing Party would otherwise be entitled.

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Any inadvertently produced materials shall be returned promptly to the

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Producing Party upon request and all copies destroyed.

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9.

The parties may also informally agree in writing that Confidential

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Material may be disclosed to a person not otherwise qualified under this Protective

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Order to receive such information. In the event that a party intends to disclose

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Confidential Material to a person not qualified to receive such information hereunder

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(for example, for use at a deposition), and the parties cannot informally agree, a party

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may request the Court rule on such disclosure.

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10.

All Confidential Material produced in this Litigation may be used only for

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purposes of this Litigation, including the Litigation itself, any appeals, and settlement

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and/or licensing negotiations intended to resolve this Litigation. All Confidential

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Material shall be maintained and used by the parties and any person listed in Paragraph

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5 only in the strictest of confidence and not disclosed to any other person without the

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prior, written consent ofthe Producing Party or upon order by the Court.

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11.

Deposition Procedures: In the event that a deposition in this litigation is

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attended by a person not authorized to receive Confidential Material, then any other

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party may have such person excluded from the deposition during any portions) of the

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deposition that it reasonably believes may result in the disclosure of its Confidential

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Material

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12.

Response to a Subpoena /Court Order: In the event that a receiving party

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receives a subpoena or is ordered by another court or governmental entity to produce

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the Confidential Material of another party, the receiving party shall notify the

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Producing Party immediately of that subpoena or order and shall promptly provide said

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subpoena or order, if it is in writing, to the Producing Party so that the Producing Party

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may object to the subpoena or order. If the Producing Party chooses to object to the

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subpoena or order, it shall provide a copy of said objection to the receiving party. If

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the receiving party receives nothing from the Producing Party prior to the time for its
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compliance with the subpoena or order, the receiving party may comply with its

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obligations under the subpoena or order.

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13.

Before any Confidential Material, or any papers containing or makin

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reference to the contents of such Confidential Material, is filed with the Court for an

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purpose, the party seeking to file such Confidential material or papers must seek

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permission ofthe Court to file the Confidential Material or documents under Seal. The

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restrictions, if any, that will govern the use of Confidential Material at trial or hearings

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will be determined at a later date by the court, in consultation with the parties.

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14.

Notwithstanding any other provision of .this Protective Order, a party

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producing Confidential Material may choose to withdraw its designation by doing so

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in writing.

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15.

Nothing in this Protective Order constitutes a finding or admission that

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any of the information disclosed or contained in the designated items is or is not

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confidential, and nothing herein shall prevent any party from contending, during the

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progress of this Litigation, that any or all of such information is not confidential. Any

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party may request from the Producing Party a change in the designation of any item or

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information and/or permission to disclose such item or information to persons in

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addition to those specified herein in Paragraph 5. Such request shall be in writing,

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state the grounds, and be served on all counsel including counsel for the Producing

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Party. The requested change shall occur or the requested permission shall be granted,

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unless an objection for good cause is served on the requesting party within twenty(20)

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business days after service of such request. In the event such objection is timely

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served, neither the requested change shall occur nor the requested permission shall be

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granted, until the objection is resolved by written agreement of the parties or Order of

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this Court. In any disagreement over a designation, the party making the designation

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bears the ultimate burden of showing that the designation is proper. No party to this

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Litigation shall be obligated to challenge the propriety of any designation, and a failure

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to do so shall not act as a waiver of its right to make a subsequent attack on the
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propriety of such designation, nor shall such failure to challenge constitute a

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admission that any information is, in fact, confidential.

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information as Confidential Material shall govern hereunder unless and until suc

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designation is modified by the designating party, the Court, or agreement of the

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parties.

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Any designation o

Production by Non-Parties: If any Confidential Material is produced by

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non-party to this Litigation, such non-party shall be considered a Producing Party

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within the meaning of those terms as used in the context of this Stipulation for a

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Protective Order and shall have the right to designate information as "Confidential."

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The designation of any material in accordance with this Protective Order

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as Confidential Material is intended solely to facilitate the preparation and trial of this

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Litigation, and treatment of such material by the parties in conformity with such

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designation will not be construed in any way as an admission or agreement by any

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party that the designated material constitutes or contains any trade secret or'

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Confidential Material.

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18.

Upon final termination of this Litigation, each party and other person

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subject to the terms of this Protective Order, including individuals required to execute

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the undertaking attached hereto as E~ibit A, shall, within sixty (60) days of said

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termination, assemble (including from all officers, employees, and in-house counsel of

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the party, all support staff, and all experts and consultants) and return to the Producing

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Party all Discovery Material designated as "Confidential," including all copies and

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other items of such Discovery Material, or in the alternative and at the option of the

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Receiving Party, either destroy all such confidential Discovery Material, or retain

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permanently all such confidential Discovery Material so long as the Receiving Party

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continues to maintain confidentiality.

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19.

Nothing in this Protective Order shall be deemed a waiver of any right

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that any party might otherwise have under the Federal Rules of Civil Procedure or the

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Federal Rules of Evidence or the doctrines of attorney-client privilege or attorney
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work-product. This Protective Order shall be without prejudice to any party to

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production of any information or items on any ground permitted by the Federal Rules.

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Any party to this Protective Order may, for good cause shown, move th

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Court for relief from all or any part of this Protective Order or for a modification of i

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provisions. The Protective Order, however, shall remain in effect until such time as i

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is modified or rescinded by the Court.

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21.

This Protective Order is not intended to govern the use of confi

Discovery Materials at trial in this action.
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Nothing in this Protective Order shall affect a party's use or disclosure

its own Confidential Material in any way.
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This Protective Order shall be without prejudice to the right of any party

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hereto to knowingly waive the applicability of this Order to any confidential Discovery

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Materials designated by that party.

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24.

This Protective Order and the agreements embodied herein shall survive

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the termination of this action and continue in full force and effect. To the extent

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permitted by law, the Court shall retain jurisdiction to enforce, modify, or reconsider

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this Protective Order, even after this action is terminated.

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25.

By signature oftheir respective counsel affixed below, each ofthe parties

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warrants that it knowingly and willingly enters into this Stipulation for a Protective

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Order. The Stipulation for a Protective Order shall be binding on the parties upon

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execution by their counsel notwithstanding that the Court may not have entered the

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corresponding Protective Order. Any modification ofthe Protective Order, including

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the incorporation of any additional parties appearing in the litigation must be made in

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writing.

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IT IS SO ORDERED.
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Dated:

f~Z'~~/S'
Honorable Magistrate Judge

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STIPULATION AND ORDER FOR PROTECTIVE ORDER: EXHIBIT A

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UNDERTAKING OF

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STATE OF

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SS:

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COUNTY OF

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I,

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say:
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I have read and understand the contents of the Protective Order dated
f
iled in the above captioned litigation, and attached hereto.

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being first duly sworn on oath, depose

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I am properly classified as a."Qualified Person" identified in Paragraph 5

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of the Protective Order, and I agree to comply with the conditions provided in the

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Protective Order prior to any disclosure to me of documents, things andlor any other

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information designated as containing, in whole or in part,"Confidential Material."

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3.

I expressly agree that all documents, things and information which are

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disclosed to me pursuant to the Protective Order shall be maintained in strict

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confidence, and I shall not disclose or use the original or any copy of, or the subject

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matter of any of the documents, things or the information they contain, except in

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accordance with the terms ofthe Protective Order.

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I shall not use or refer to any of the documents, things and/or any

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information that falls within the terms of the Protective Order other than in connection

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with this litigation and as prescribed in the Protective Order.

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5.

Further, I shall, upon notification that this litigation has terminated, return

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any and all originals and/or copies of the documents and things to counsel for the party

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who provided such documents, and I shall destroy any notes or memoranda I have
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which in any way concern the substance embraced by such documents, things and/

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information.

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I do and shall subject myself to the continuing jurisdiction of the abov

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captioned Court over my person, wherever I shall be found, for purposes

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enforcement ofthe Protective Order.

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Date:
[Signature]

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[
Printed Name]

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