Gerald Iacono v. International Business Machines Corporation et al

Filing 14

STIPULATED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams. 13 (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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)
)
)
Plaintiff,
)
)
vs.
)
)
INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New )
)
York corporation; and DOES 1-50,
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inclusive,
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Defendants.
)
)
GERALD IACONO, an individual

CASE NO.: 2:17-cv-08083-FMO-PLA
STIPULATED PROTECTIVE
ORDER
Scheduling Conference 1/4/18
CASE FILED: 09/20/2017
DISCOVERY CUT OFF: 06/29/18
MOTION CUT-OFF:
06/29/18
TRIAL DATE:
01/29/19

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1.

A. 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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[Prop.] Stipulated Protective Order

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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

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to 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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B.

GOOD CAUSE STATEMENT

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This action is likely to involve confidential medical information and other

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information protected by the right of privacy, trade secrets, customerlists, customer

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account information, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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

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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

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be 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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discovery materials, to adequately protect information the parties are entitled to

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keep confidential, to ensure that the parties are permitted reasonable necessary uses

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of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this matter. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that
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[Prop.] Stipulated Protective Order

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

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a confidential, non-public manner, and there is good cause why it should not be

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part of the public record of this case.

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2.

DEFINITIONS
2.1

Action:

Gerald

Iacono

v.

International

Business

Machines

Corporation, Case No. 2:17-cv-08083-FMO-PLA.
2.2

Challenging Party:

a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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the Good Cause Statement.

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2.4

“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or

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Items, the disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.

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2.5

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.6

Designating Party: a Party or Non-Party that designates information or

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

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“CONFIDENTIAL.”

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2.7

Disclosure or Discovery Material: all items or information, regardless

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

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among other things, testimony, transcripts, and tangible things), that are produced

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

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2.8

Expert: a person with specialized knowledge or experience in a matter

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

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

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2.9

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

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.

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2.11 Outside Counsel of Record: attorneys who are not employees of a

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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 that has appeared on behalf of that party, including support staff.

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2.12 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.14 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.

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2.15 Protected Material: any Disclosure or Discovery Material that is

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designated

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ATTORNEYS’ EYES ONLY.”

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as

“CONFIDENTIAL

or

“HIGHLY

CONFIDENTIAL

–

2.16 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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///

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///
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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. Any

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use of Protected Material at trial shall be governed by the orders of the trial judge.

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This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Once a case proceeds to trial, all of the court-filed information to be

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introduced that was previously designated as confidential or maintained pursuant

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to this protective order becomes public and will be presumptively available to all

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members of the public, including the press, unless compelling reasons supported

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by specific factual findings to proceed otherwise are made to the trial judge in

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advance of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d

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1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for sealing

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documents produced in discovery from “compelling reasons” standard when

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merits-related documents are part of court record). Accordingly, the terms of this

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protective order do not extend beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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

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qualifies under the appropriate standards. The Designating Party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications that qualify so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept

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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

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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

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

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

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, to each page that contains

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

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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

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the “CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also

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

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markings in the margins).

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(b)

for testimony given in depositions that the Designating Party

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

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deposition.

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(c) for information produced in some form other than documentary and

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for any other tangible items, that the Producing Party affix in a prominent place on

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the exterior of the container or containers in which the information is stored the

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legend “CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Order for such

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

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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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///

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///

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6.

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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

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resolution process under Local Rule 37.1, et seq. Any discovery motion must

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strictly comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.

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6.3

Burden. The burden of persuasion in any such challenge proceeding

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

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

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

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the Court rules on

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the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

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

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

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

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

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

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DISPOSITION). Protected Material must be stored and maintained by a Receiving

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

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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

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necessary to disclose the information for this Action;

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(b) the officers, directors, and employees (including House Counsel)
of the Receiving Party to whom disclosure is reasonably necessary for this Action;

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

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disclosure is reasonably necessary for this Action and who have signed the

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“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 Professional

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

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

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(g) the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information;

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(h) during their depositions, witnesses, and attorneys for witnesses, in

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the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)

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they will not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the Court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material may

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

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except as permitted under this Stipulated Protective Order; and

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(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
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7.3

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ONLY” Information or Items. Unless otherwise ordered by the court or

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permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “HIGHLY CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY” only to:

Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as

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

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necessary to disclose the information for this Action;

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

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disclosure is reasonably necessary for this Action and who have signed the

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

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(c) the court and its personnel;

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(d) private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(e) professional jury or trial consultants, mock jurors, and Professional

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

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

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(f) the author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information; and

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(g) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

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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:
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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

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(b)

promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served

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

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

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the 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) The terms of this Order are applicable to information produced by

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

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

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

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

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protections.

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(b)

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

to produce a NonParty’s confidential information in its possession, and the Party is

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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:

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(1) promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3) make the information requested available for inspection by the
Non-Party, if requested.

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(c) If the Non-Party fails to seek a protective order from this Court

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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

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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

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

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

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of this Order, and (d) request such person or persons to execute the
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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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4

11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

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OTHERWISE PROTECTED MATERIAL

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Pursuant to Rule 502 of the Federal Rules of Evidence, the inadvertent

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disclosure of communications, documents, or information protected by the

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attorney-client privilege, work product doctrine, or any other privilege (“Privileged

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Material”) shall not constitute a waiver of any privilege or other protection if the

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Producing Party took reasonable steps to prevent disclosure and also took

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reasonable steps to rectify the error in the event of an inadvertent disclosure. The

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Producing Party will be deemed to have taken reasonable steps to prevent

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Privileged Material from inadvertent disclosure if that party utilized either attorney

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screening, keyword search term screening, advanced analytical software

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applications and/or linguistic tools in screening for privilege, work product, or

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other protection. In the event of the inadvertent disclosure of Privileged Material,

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the Producing Party shall be deemed to have taken reasonable steps to rectify the

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error of the disclosure if, within thirty (30) days from the date that the inadvertent

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disclosure was discovered or brought to the attention of the Producing Party, the

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Producing Party notifies the Receiving Party of the inadvertent disclosure and

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instructs the Receiving Party to promptly sequester, return, delete, or destroy all

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copies of the inadvertently produced Privileged Material (including any and all

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work product containing such Privileged Material). The Receiving Party also has

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an affirmative obligation to notify the Producing Party if it receives

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communications, documents, or information that appear to constitute Privileged

26

Material. Upon receiving such a request from the Producing Party, the Receiving

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Party shall promptly sequester, return, delete, or destroy all copies of such

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inadvertently produced Privileged Material (including any and all work product
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[Prop.] Stipulated Protective Order

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containing such Privileged Material), and shall make no further use of such

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Privileged Material (or work product containing such Privileged Material).

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12.

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

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

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

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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

12

Order. The entering of the Protective Order and subsequent “CONFIDENTIAL”

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or “ HIGHLY CONFIDENTIAL--ATTORNEY’S EYES ONLY” designation does

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not prohibit a Party from redacting privileged, irrelevant and/or private confidential

15

information from documents designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL—ATTORNEY’S EYES-ONLY.”

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

18

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

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

20

specific Protected Material at issue; good cause must be shown in the request to

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file under seal. If a Party’s request to file Protected Material under seal is denied

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by the Court, then the Receiving Party may file the information in the public record

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unless otherwise instructed by the Court.

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13.

FINAL DISPOSITION
After the final disposition of this Action, within 60 days of a written request

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by the Designating Party, each Receiving Party must return all Protected Material

28

to the Producing Party or destroy such material. As used in this subdivision, “all
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Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed and

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(2) affirms that the Receiving Party has not retained any copies, abstracts,

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

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Protected Material. Notwithstanding this provision, counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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14.

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

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sanctions.

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: January 12, 2018

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MAGNANIMO & DEAN, LLP

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By

s/ Lauren A. Dean
Lauren A. Dean
Attorneys for Plaintiff Gerald Iacono

DATED: January 12, 2018

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Case No.: 2:17-cv-8083
{Client Files-NEW/IACO01/001/PLD/00083521.DOCX}

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[Prop.] Stipulated Protective Order

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By

s/ Momo E. Takahashi
Momo E. Takahashi
Attorneys for Defendant International Business Machines Corporation

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: January 16, 2018

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Paul L. Abrams
United States Magistrate Judge

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Case No.: 2:17-cv-8083
{Client Files-NEW/IACO01/001/PLD/00083521.DOCX}

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[Prop.] Stipulated Protective Order

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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

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have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Central District of California on

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[date] in the case of Gerald Iacono v. International Business Machines

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Corporation, Case No. 2:17-cv-08083-FMO-PLA. I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective

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Order to any person or entity except in strict compliance with the provisions of this

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Order.

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

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

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint

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[print or type full name] of _____________________________________ [print or

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type full address and telephone number] as my California agent for service of

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process in connection with this action or any proceedings related to enforcement of

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this Stipulated Protective Order.

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Printed name: _______________________________

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Signature: __________________________________

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4846-4139-6313, v. 1

Case No.: 2:17-cv-8083
{Client Files-NEW/IACO01/001/PLD/00083521.DOCX}

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[Prop.] Stipulated Protective Order