North American Company for Life and Health Insurance v. Xiaocui Zhang et al

Filing 74

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 69 . (see order for details) (hr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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NORTH AMERICAN COMPANY
FOR LIFE AND HEALTH
INSURANCE,

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Plaintiff,

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v.

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XIAOCUI ZHANG, an individual;
SHICHEN ZHANG, an individual;
and SHILONG ZHANG, an
individual,

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Defendants.

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AND RELATED COUNTER
CLAIM

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) Case No. 2:18-CV-01872-AG-FFM
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) PROTECTIVE ORDER
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25 1.
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PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or private

27 information requiring special protection from public disclosure and from use for any
28 purpose other than this litigation. Thus, the Court enters this Protective Order. This
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1 Order does not confer blanket protections on all disclosures or responses to discovery,
2 and the protection it gives from public disclosure and use extends only to the specific
3 material entitled to confidential treatment under the applicable legal principles. This
4 Order does not automatically authorize the filing under seal of material designated
5 under this Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file
6 anything under seal. This Order does not govern the use at trial of material designated
7 under this Order.
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9 2.
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DESIGNATING PROTECTED MATERIAL
2.1 Over-Designation Prohibited. Any party or non-party who designates

11 information or items for protection under this Order as “CONFIDENTIAL,”
12 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY
13 CONFIDENTIAL – SOURCE CODE” (a “designator”) must only designate specific
14 material that qualifies under the appropriate standards. To the extent practicable, only
15 those parts of documents, items, or oral or written communications that require
16 protection shall be designated. Designations with a higher confidentiality level when
17 a lower level would suffice are prohibited. Mass, indiscriminate, or routinized
18 designations are prohibited. Unjustified designations expose the designator to
19 sanctions, including the Court’s striking all confidentiality designations made by that
20 designator. Designation under this Order is allowed only if the designation is
21 necessary to protect material that, if disclosed to persons not authorized to view it,
22 would cause competitive or other recognized harm. Material may not be designated if
23 it has been made public, or if designation is otherwise unnecessary to protect a secrecy
24 interest. If a designator learns that information or items that it designated for
25 protection do not qualify for protection at all or do not qualify for the level of
26 protection initially asserted, that designator must promptly notify all parties that it is
27 withdrawing the mistaken designation.
28 / / /
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2.2 Manner and Timing of Designations. Designation under this Order

2 requires the designator to affix the applicable legend (“CONFIDENTIAL,”
3 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY
4 CONFIDENTIAL – SOURCE CODE”) to each page that contains protected material.
5 For testimony given in deposition or other proceeding, the designator shall specify all
6 protected testimony and the level of protection being asserted. It may make that
7 designation during the deposition or proceeding, or may invoke, on the record or by
8 written notice to all parties on or before the next business day, a right to have up to
9 21 days from the deposition or proceeding to make its designation.
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2.2.1 A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and

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produced. During the inspection and before the designation, all material shall

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be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After

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the inspecting party has identified the documents it wants copied and produced,

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the producing party must designate the documents, or portions thereof, that

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qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or other

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proceeding to include designated material so that the other parties can ensure

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that only authorized individuals are present at those proceedings when such

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material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence of

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designated material, and the title page shall be followed by a list of all pages

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(including line numbers as appropriate) that have been designated, and the level

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of protection being asserted. The designator shall inform the court reporter of

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these requirements. Any transcript that is prepared before the expiration of the

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21-day period for designation shall be treated during that period as if it had
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been designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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unless otherwise agreed. After the expiration of the 21-day period, the

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transcript shall be treated only as actually designated.

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2.3 Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon

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timely assertion or correction of a designation, all recipients must make

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reasonable efforts to ensure that the material is treated according to this Order.

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9 3.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

11 through L.R. 37-4.
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ACCESS TO DESIGNATED MATERIAL
4.1 Basic Principles. A receiving party may use designated material only for

15 this litigation. Designated material may be disclosed only to the categories of persons
16 and under the conditions described in this Order.
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4.2 Disclosure of CONFIDENTIAL Material Without Further Approval.

18 Unless otherwise ordered by the Court or permitted in writing by the designator, a
19 receiving party may disclose any material designated CONFIDENTIAL only to:
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4.2.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom disclosure is reasonably

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necessary;

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4.2.2 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the Agreement

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to Be Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of record

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to whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);
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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound (Exhibit A); and

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4.2.7 The author or recipient of a document containing the material, or a
custodian or other person who otherwise possessed or knew the information.
4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

11 ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without
12 Further Approval. Unless permitted in writing by the designator, a receiving party
13 may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES
14 ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE without further approval
15 only to:
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4.3.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom it is reasonably necessary to

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disclose the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.4 The author or recipient of a document containing the material, or a

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

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4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY

26 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL
27 – SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in
28 writing by the designator:
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4.4.1 A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must

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first make a written request to the designator providing the full name of the in-

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house counsel, the city and state of such counsel’s residence, and such

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counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities in sufficient detail to determine present or potential

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involvement in any competitive decision-making. Inhouse counsel are not

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authorized to receive material designated HIGHLY CONFIDENTIAL –

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SOURCE CODE.

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4.4.2 A party seeking to disclose to an expert retained by outside counsel

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of record any information or item that has been designated HIGHLY

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CONFIDENTIAL

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CONFIDENTIAL – SOURCE CODE must first make a written request to the

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designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL

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CONFIDENTIAL – SOURCE CODE information that the receiving party

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seeks permission to disclose to the expert, (2) sets forth the full name of the

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expert and the city and state of his or her primary residence, (3) attaches a copy

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of the expert’s current resume, (4) identifies the expert’s current employer(s),

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(5) identifies each person or entity from whom the expert has received

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compensation or funding for work in his or her areas of expertise (including in

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connection with litigation) in the past five years, and (6) identifies (by name

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and number of the case, filing date, and location of court) any litigation where

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the expert has offered expert testimony, including by declaration, report, or

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testimony at deposition or trial, in the past five years. If the expert believes any

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of this information at (4) - (6) is subject to a confidentiality obligation to a third

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party, then the expert should provide whatever information the expert believes

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can be disclosed without violating any confidentiality agreements, and the party

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ATTORNEY

ATTORNEY

EYES

EYES

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ONLY

ONLY

or

or

HIGHLY

HIGHLY

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seeking to disclose the information to the expert shall be available to meet and

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confer with the designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information specified

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in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the

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identified inhouse counsel or expert unless, within seven days of delivering the

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request, the party receives a written objection from the designator providing

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detailed grounds for the objection.

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4.4.4 All challenges to objections from the designator shall proceed
under L.R. 37-1 through L.R. 37-4.

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SOURCE CODE
5.1 Designation of Source Code. If production of source code is necessary, a

13 party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or
14 includes, confidential, proprietary, or trade secret source code.
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5.2

Location

and

Supervision

of

Inspection.

Any

HIGHLY

16 CONFIDENTIAL – SOURCE CODE produced in discovery shall be made available
17 for inspection, in a format allowing it to be reasonably reviewed and searched, during
18 normal business hours or at other mutually agreeable times, at an office of the
19 designating party’s counsel or another mutually agreeable location. The source code
20 shall be made available for inspection on a secured computer in a secured room, and
21 the inspecting party shall not copy, remove, or otherwise transfer any portion of the
22 source code onto any recordable media or recordable device. The designator may
23 visually monitor the activities of the inspecting party’s representatives during any
24 source code review, but only to ensure that there is no unauthorized recording,
25 copying, or transmission of the source code.
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5.3 Paper Copies of Source Code Excerpts. The inspecting party may request

27 paper copies of limited portions of source code that are reasonably necessary for the
28 preparation of court filings, pleadings, expert reports, other papers, or for deposition
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1 or trial. The designator shall provide all such source code in paper form, including
2 Bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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5.4 Access Record. The inspecting party shall maintain a record of any

4 individual who has inspected any portion of the source code in electronic or paper
5 form, and shall maintain all paper copies of any printed portions of the source code in
6 a secured, locked area. The inspecting party shall not convert any of the information
7 contained in the paper copies into any electronic format other than for the preparation
8 of a pleading, exhibit, expert report, discovery document, deposition transcript, or
9 other Court document. Any paper copies used during a deposition shall be retrieved
10 at the end of each day and must not be left with a court reporter or any other
11 unauthorized individual.
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PROSECUTION BAR
Absent written consent from the designator, any individual who receives access

15 to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
16 CONFIDENTIAL – SOURCE CODE information shall not be involved in the
17 prosecution of patents or patent applications concerning the field of the invention of
18 the patents-in-suit for the receiving party or its acquirer, successor, predecessor, or
19 other affiliate during the pendency of this action and for one year after its conclusion,
20 including any appeals. “Prosecution” means drafting, amending, advising on the
21 content of, or otherwise affecting the scope or content of patent claims or
22 specifications. These prohibitions shall not preclude counsel from participating in
23 reexamination or inter partes review proceedings to challenge or defend the validity
24 of any patent, but counsel may not participate in the drafting of amended claims in
25 any such proceedings.
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1 7.

PROTECTED

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PRODUCED IN OTHER LITIGATION

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MATERIAL

SUBPOENAED

OR

ORDERED

7.1 Subpoenas and Court Orders. This Order in no way excuses

4 noncompliance with a lawful subpoena or court order. The purpose of the duties
5 described in this section is to alert the interested parties to the existence of this Order
6 and to give the designator an opportunity to protect its confidentiality interests in the
7 court where the subpoena or order issued.
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7.2 Notification Requirement. If a party is served with a subpoena or a court

9 order issued in other litigation that compels disclosure of any information or items
10 designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL –
11 ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that
12 party must:
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7.2.1 Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order;

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7.2.2 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

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the subpoena or order is subject to this Order. Such notification shall include a

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copy of this Order; and

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7.2.3 Cooperate with all reasonable procedures sought by the designator

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whose material may be affected.

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7.3 Wait For Resolution of Protective Order. If the designator timely seeks

22 a protective order, the party served with the subpoena or court order shall not produce
23 any information designated in this action as CONFIDENTIAL, HIGHLY
24 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –
25 SOURCE CODE before a determination by the court where the subpoena or order
26 issued, unless the party has obtained the designator’s permission. The designator shall
27 bear the burden and expense of seeking protection of its confidential material in that
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UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed

3 designated material to any person or in any circumstance not authorized under this
4 Order, it must immediately (1) notify in writing the designator of the unauthorized
5 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated
6 material, (3) inform the person or persons to whom unauthorized disclosures were
7 made of all the terms of this Order, and (4) use reasonable efforts to have such person
8 or persons execute the Agreement to Be Bound (Exhibit A).
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10 9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

13 material is subject to a claim of privilege or other protection, the obligations of the
14 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
15 This provision is not intended to modify whatever procedure may be established in an
16 e-discovery order that provides for production without prior privilege review pursuant
17 to Federal Rule of Evidence 502(d) and (e).
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FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

21 not file in the public record in this action any designated material. A party seeking to
22 file under seal any designated material must comply with L.R. 79-5.1. Filings may be
23 made under seal only pursuant to a court order authorizing the sealing of the specific
24 material at issue. The fact that a document has been designated under this Order is
25 insufficient to justify filing under seal. Instead, parties must explain the basis for
26 confidentiality of each document sought to be filed under seal. Because a party other
27 than the designator will often be seeking to file designated material, cooperation
28 between the parties in preparing, and in reducing the number and extent of, requests
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1 for under seal filing is essential. If a receiving party’s request to file designated
2 material under seal pursuant to L.R. 79-5.1 is denied by the Court, then the receiving
3 party may file the material in the public record unless (1) the designator seeks
4 reconsideration within four days of the denial, or (2) as otherwise instructed by the
5 Court.
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FINAL DISPOSITION
Within 60 days after the final disposition of this action, each party shall return

9 all designated material to the designator or destroy such material, including all copies,
10 abstracts, compilations, summaries, and any other format reproducing or capturing
11 any designated material. The receiving party must submit a written certification to the
12 designator by the 60- day deadline that (1) identifies (by category, where appropriate)
13 all the designated material that was returned or destroyed, and (2) affirms that the
14 receiving party has not retained any copies, abstracts, compilations, summaries, or
15 any other format reproducing or capturing any of the designated material. This
16 provision shall not prevent counsel from retaining an archival copy of all pleadings,
17 motion papers, trial, deposition, and hearing transcripts, legal memoranda,
18 correspondence, deposition and trial exhibits, expert reports, attorney work product,
19 and consultant and expert work product, even if such materials contain designated
20 material. Any such archival copies remain subject to this Order.
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22 IT IS SO ORDERED.
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DATED: November 8, 2018

/S/ Frederick F. Mumm
FREDERICK F. MUMM
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

4 _________________ [print or type full address], declare under penalty of perjury that
5 I have read in its entirety and understand the Protective Order that was issued by the
6 United States District Court for the Central District of California on _______ [date]
7 in the case of North American Company for Life and Health Insurance v. Xiaocui
8 Zhang, et al., Case No. 2:18-CV-01872-AG-FFM. I agree to comply with and to be
9 bound by all the terms of this Protective Order, and I understand and acknowledge
10 that failure to so comply could expose me to sanctions and punishment for contempt.
11 I solemnly promise that I will not disclose in any manner any information or item that
12 is subject to this Protective Order to any person or entity except in strict compliance
13 with this Order.
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I further agree to submit to the jurisdiction of the United States District Court

15 for the Central District of California for the purpose of enforcing this Order, even if
16 such enforcement proceedings occur after termination of this action.
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I hereby appoint __________________________ [print or type full name] of

18 _______________________________________ [print or type full address and
19 telephone number] as my California agent for service of process in connection with
20 this action or any proceedings related to enforcement of this Order.
21 Date: ___________________________
22 City and State where sworn and signed: _________________________________
23 Printed name: ____________________
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[printed name]

25 Signature: _______________________
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[signature]

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