Leslie Fram v. Memory Enterprises, LLC

Filing 39

PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order, 38 . (See Order for details) [Note Changes Made By The Court]. (bem)

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NOTE: CHANGES MADE BY THE COURT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LESLIE FRAM, an individual,
Plaintiff,

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vs.
MEMORY ENTERPRISES, LLC, a
Delaware corporation; MICHAEL
DOTTINO, an individual; LYNN
WILLIAMS, and individual; and DOES
1 through 10, inclusive,
Defendants.

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MEMORY ENTERPRISES, LLC, a
Florida limited liability company;
MICHAEL DOTTINO, an individual,

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PROTECTIVE ORDER

Complaint Filed: September 28, 2017
Trial Date:
January 8, 2019

Counter-Claimants,

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Case No. 2:17-cv-07172-MWF-JPR

vs.
LESLIE FRAM, an individual,
NUROWAVE, INC., a Delaware
corporation, and ROES 1-10, inclusive
CounterDefendants.

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1.

PURPOSES AND LIMITATIONS

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

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth

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in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

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file confidential information under seal; Civil Local Rule 79-5 sets forth the

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procedures that must be followed and the standards that will be applied when a

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party seeks permission from the court to file material under seal.

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A.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, manuals, business plans,

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budgeting information, sponsor lists and competitor lists and other valuable

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research, development, commercial, financial, technical and/or proprietary

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information for which the parties believe special protection from public disclosure

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

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Such confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information, information regarding

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

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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,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of
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[PROPOSED] PROTECTIVE ORDER

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discovery materials, to adequately protect information the parties believe they are

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entitled to keep confidential, to ensure that the parties are permitted reasonable

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necessary uses of such material in preparation for and in the conduct of trial, to

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address their handling at the end of the litigation, and serve the ends of justice, a

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protective order for such information is justified in this matter. It is the intent of the

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parties that information will not be designated as confidential for tactical reasons

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and that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it

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should not be part of the public record of this case.

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2.

DEFINITIONS
2.1.

Action: Leslie Fram v. Memory Enterprises, LLC et al. –

Central District of California Case Number 2:17-cv-07172-MWF-JPR.
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

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified

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above in the Good Cause Statement.

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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

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information or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6.

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.

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2.7.
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Expert: a person with specialized knowledge or experience in a
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[PROPOSED] PROTECTIVE ORDER

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this Action.
2.8.

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

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Action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.9.

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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

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

a party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm 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,

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directors, employees, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).
2.12. Producing Party: a Party or Non-Party that produces Disclosure

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or Discovery Material in this Action.

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2.13. Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.
2.14. Protected Material: any Disclosure or Discovery Material that is

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

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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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.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

5.1.

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DESIGNATING PROTECTED MATERIAL
Exercise of Restraint and Care in Designating Material for

Protection.
Each Party or Non-Party that designates information or items for protection

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items, or oral or

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written communications that qualify so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other parties) may expose the

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

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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5.2.

Manner and Timing of Designations.

Except as otherwise provided in this Order (see, e.g., second paragraph of

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section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

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electronic documents, but excluding transcripts of depositions or other pretrial or

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trial proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).
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[PROPOSED] PROTECTIVE ORDER

(b)

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for testimony given in depositions that the Designating

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Party identify the Disclosure or Discovery Material on the record, before the close

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of the deposition all protected testimony.

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(c)

for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party affix in a

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prominent place on the exterior of the container or containers in which the

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information is stored the legend “CONFIDENTIAL.” If only a portion or portions

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of the information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).
5.3.

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Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for

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such material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

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

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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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

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be on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules on the
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challenge.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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Basic Principles. A Receiving Party may use Protected Material

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that is disclosed or produced by another Party or by a Non-Party in connection with

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this Action only for prosecuting, defending, or attempting to settle this Action.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the Action has been terminated,

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a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:
(a)

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the Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to whom it is

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reasonably necessary to disclose the information for this Action;
(b)

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the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;
(c)

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

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to whom disclosure is reasonably necessary for this Action and who have signed

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);
(g)

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the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information;
(h)

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during their depositions, witnesses ,and attorneys for

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witnesses, in the Action to whom disclosure is reasonably necessary provided: (1)

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the deposing party requests that the witness sign the form attached as Exhibit 1

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hereto; and (2) they will not be permitted to keep any confidential information

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unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions or appointed by the Court.
8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such

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notification shall include a copy of the subpoena or court order unless prohibited by

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law;
(b)

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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
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covered by the subpoena or order is subject to this Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and
(c)

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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

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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(a)

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The terms of this Order are applicable to information

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produced by a Non-Party in this Action and designated as “CONFIDENTIAL.”

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Such information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.
(b)

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

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request, to produce a Non-Party’s confidential information in its possession, and the

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Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and

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the Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;
(2)

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151687.00601/106786994v.1

promptly provide the Non-Party with a copy of the
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Stipulated Protective Order in this Action, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3)

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make the information requested available for

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inspection by the Non-Party, if requested.

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(c)

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

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court provided the Court so allows.

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12.

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

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MISCELLANEOUS

of any person to seek its modification by the Court in the future.

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

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this Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in

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this Stipulated Protective Order. Similarly, no Party waives any right to object on

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any ground to use in evidence of any of the material covered by this Protective

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Order.
12.3. Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a court order authorizing the

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sealing of the specific Protected Material at issue. If a Party’s request to file

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Protected Material under seal is denied by the court, then the Receiving Party may

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file the information in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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

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days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the

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Protected Material. Whether the Protected Material is returned or destroyed, the
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Receiving Party must submit a written certification to the Producing Party (and, if

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not the same person or entity, to the Designating Party) by the 60 day deadline that

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(1) identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2)affirms that the Receiving Party has not retained any

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copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival

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copies that contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section 4 (DURATION).

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

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appropriate measures including, without limitation, contempt proceedings and/or

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monetary sanctions.

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The Stipulated Protective Order, having been stipulated by all parties, and the
Court having found good cause, IT IS SO ORDERED.

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DATED: April 9, 2018

____________________________
Honorable Jean P. Rosenbluth
United States Magistrate Judge

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Respectfully submitted by:

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BLANK ROME LLP
By:

/s/ Nadia D. Adams
Cheryl S. Chang
Nadia D. Adams
Attorneys for Defendants & Counter-Claimants,
Memory Enterprises, LLC and Michael Dottino

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ______________________ [print or type full name], of _______________

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[print or type full address], declare under penalty of perjury that I have read in its

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entirety and understand the Stipulated Protective Order that was issued by the

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United States District Court for the Central District of California on [date] in the

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case of ________________ [insert formal name of the case and the number and

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initials assigned to it by the court], I agree to comply with and to be bound by all

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the terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any

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information or item that is subject to this Stipulated Protective Order to any person

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or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court

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

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint _________________ [print or type full

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name] of ______________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action

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or any proceedings related to enforcement of this Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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