Enttech Media Group LLC v. Okularity, Inc. et al

Filing 105

**WITHDRAWN** PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order. 104 (See document for details) (vmun)

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1 Robert Tauler (SBN 241964) rtauler@taulersmith.com 2 Valerie Saryan (SBN 297115) vsaryan@taulersmith.com 3 Gil Peles (SBN 238889) gpeles@taulersmith.com 4 Tauler Smith LLP 626 Wilshire Boulevard, Suite 510 5 Los Angeles, California 90017 6 Tel: (310) 590-3927 Attorneys for Plaintiff 7 ENTTech Media Group LLC 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ENTTECH MEDIA GROUP LLC 13 Plaintiff, 14 15 16 v. Case No. 2:20-cv-06298-JWH (Ex) [PROPOSED] PROTECTIVE ORDER OKULARITY, INC., et al. Defendants. Hon. Charles F. Eick 17 18 19 20 21 22 23 24 25 26 27 28 PROTECTIVE ORDER 1 I. 2 3 4 PURPOSES AND LIMITATIONS A. Because discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this 5 litigation may be warranted, this Court enters the following Protective Order. The 6 parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords from public 8 disclosure and use extends only to the limited information or items that are entitled 9 to confidential treatment under the applicable legal principles. The parties further 10 acknowledge, as set forth in Section XIII(C) below, that this Protective Order does 11 not entitle them to file confidential information under seal; Civil Local Rule 79-5 12 sets forth the procedures that must be followed and the standards that will be 13 applied when a party seeks permission from the Court to file material under seal. 14 II. GOOD CAUSE STATEMENT 15 A. 16 order to expedite the flow of information, to facilitate the prompt resolution of 17 disputes over confidentiality of discovery materials, to adequately protect 18 information the parties are entitled to keep confidential, to ensure that the parties 19 are permitted reasonable and necessary uses of such material in connection with 20 this action, to address their handling of such material at the end of the litigation, 21 and to serve the ends of justice, a protective order for such information is justified 22 in this matter. The parties shall not designate any information/documents as 23 confidential without a good faith belief that such information/documents have been 24 maintained in a confidential, non-public manner, and that there is good cause or a 25 compelling reason why it should not be part of the public record of this case. 26 III. DEFINITIONS 27 A. 28 This action is likely to involve the production of confidential records, and in Action: This pending federal lawsuit. ii PROTECTIVE ORDER 1 B. Challenging Party: A Party or Non-Party that challenges the designation of 2 information or items under this Order. 3 C. 4 it is generated, stored or maintained) or tangible things that qualify for protection 5 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 6 Cause Statement. 7 D. 8 support staff). 9 E. “CONFIDENTIAL” Information or Items: Information (regardless of how Counsel: Outside Counsel of Record and House Counsel (as well as their Designating Party: A Party or Non-Party that designates information or 10 items that it produces in disclosures or in responses to discovery as 11 “CONFIDENTIAL.” 12 F. 13 the medium or manner in which it is generated, stored, or maintained (including, 14 among other things, testimony, transcripts, and tangible things), that are produced 15 or generated in disclosures or responses to discovery in this matter. 16 G. 17 pertinent to the litigation who has been retained by a Party or its Counsel to serve 18 as an expert witness or as a consultant in this Action. 19 H. 20 House Counsel does not include Outside Counsel of Record or any other outside 21 counsel. 22 I. 23 other legal entity not named as a Party to this action. 24 J. 25 this Action but are retained to represent or advise a party to this Action and have 26 appeared in this Action on behalf of that party or are affiliated with a law firm 27 which has appeared on behalf of that party, and includes support staff. 28 Disclosure or Discovery Material: All items or information, regardless of Expert: A person with specialized knowledge or experience in a matter House Counsel: Attorneys who are employees of a Party to this Action. Non-Party: Any natural person, partnership, corporation, association, or Outside Counsel of Record: Attorneys who are not employees of a party to iii PROTECTIVE ORDER 1 K. Party: Any party to this Action, including all of its officers, directors, 2 employees, consultants, retained experts, and Outside Counsel of Record (and their 3 support staffs). 4 L. 5 Discovery Material in this Action. 6 M. 7 services (e.g., photocopying, videotaping, translating, preparing exhibits or 8 demonstrations, and organizing, storing, or retrieving data in any form or medium) 9 and their employees and subcontractors. Producing Party: A Party or Non-Party that produces Disclosure or Professional Vendors: Persons or entities that provide litigation support 10 N. 11 as “CONFIDENTIAL.” 12 O. 13 from a Producing Party. 14 IV. SCOPE 15 A. 16 Protected Material (as defined above), but also (1) any information copied or 17 extracted from Protected Material; (2) all copies, excerpts, summaries, or 18 compilations of Protected Material; and (3) any testimony, conversations, or 19 presentations by Parties or their Counsel that might reveal Protected Material. 20 B. 21 the trial judge. This Order does not govern the use of Protected Material at trial. 22 V. DURATION 23 Even after final disposition of this litigation, the confidentiality obligations 24 imposed by this Order shall remain in effect until a Designating Party agrees 25 otherwise in writing or a court order otherwise directs. Final disposition shall be 26 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 27 with or without prejudice; and (2) final judgment herein after the completion and 28 Protected Material: Any Disclosure or Discovery Material that is designated Receiving Party: A Party that receives Disclosure or Discovery Material The protections conferred by this Stipulation and Order cover not only Any use of Protected Material at trial shall be governed by the orders of iv PROTECTIVE ORDER 1 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 2 including the time limits for filing any motions or applications for extension of 3 time pursuant to applicable law. 4 VI. DESIGNATING PROTECTED MATERIAL 5 A. Exercise of Restraint and Care in Designating Material for Protection 6 1. Each Party or Non-Party that designates information or items for 7 protection under this Order must take care to limit any such designation to 8 specific material that qualifies under the appropriate standards. The 9 Designating Party must designate for protection only those parts of material, 10 documents, items, or oral or written communications that qualify so that 11 other portions of the material, documents, items, or communications for 12 which protection is not warranted are not swept unjustifiably within the 13 ambit of this Order. 14 2. 15 Designations that are shown to be clearly unjustified or that have been made 16 for an improper purpose (e.g., to unnecessarily encumber the case 17 development process or to impose unnecessary expenses and burdens on 18 other parties) may expose the Designating Party to sanctions. 19 3. 20 that it designated for protection do not qualify for protection, that 21 Designating Party must promptly notify all other Parties that it is 22 withdrawing the inapplicable designation. 23 B. Mass, indiscriminate, or routinized designations are prohibited. If it comes to a Designating Party’s attention that information or items Manner and Timing of Designations 24 1. Except as otherwise provided in this Order (see, e.g., 25 Section IV(B)(2)(b) and Section IV(C) below), or as otherwise stipulated or 26 ordered, Disclosure or Discovery Material that qualifies for protection under 27 28 v PROTECTIVE ORDER 1 this Order must be clearly so designated before the material is disclosed or 2 produced. 3 2. Designation in conformity with this Order requires the following: 4 a. For information in documentary form (e.g., paper or electronic 5 documents, but excluding transcripts of depositions or other pretrial or 6 trial proceedings), that the Producing Party affix at a minimum, the 7 legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), 8 to each page that contains protected material. If only a portion or 9 portions of the material on a page qualifies for protection, the 10 Producing Party also must clearly identify the protected portion(s) 11 (e.g., by making appropriate markings in the margins). 12 b. 13 for inspection need not designate them for protection until after the 14 inspecting Party has indicated which documents it would like copied 15 and produced. During the inspection and before the designation, all 16 of the material made available for inspection shall be deemed 17 “CONFIDENTIAL.” After the inspecting Party has identified the 18 documents it wants copied and produced, the Producing Party must 19 determine which documents, or portions thereof, qualify for 20 protection under this Order. Then, before producing the specified 21 documents, the Producing Party must affix the “CONFIDENTIAL 22 legend” to each page that contains Protected Material. If only a 23 portion or portions of the material on a page qualifies for protection, 24 the Producing Party also must clearly identify the protected portion(s) 25 (e.g., by making appropriate markings in the margins). A Party or Non-Party that makes original documents available 26 27 28 vi PROTECTIVE ORDER 1 c. 2 identify the Disclosure or Discovery Material on the record, before 3 the close of the deposition all protected testimony. 4 d. 5 any other tangible items, that the Producing Party affix in a prominent 6 place on the exterior of the container or containers in which the 7 information is stored the legend “CONFIDENTIAL.” If only a 8 portion or portions of the information warrants protection, the 9 Producing Party, to the extent practicable, shall identify the protected For information produced in form other than document and for portion(s). 10 11 For testimony given in depositions, that the Designating Party C. Inadvertent Failure to Designate 12 1. If promptly corrected by notice to a Receiving Party, an inadvertent 13 failure to designate qualified information or items does not, standing alone, 14 waive the Designating Party’s right to secure protection under this Order for 15 such material. 16 2. 17 make reasonable efforts to assure that the material is treated in accordance 18 with the provisions of this Order. Upon prompt correction of a designation, the Receiving Party must 19 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS 20 A. Timing of Challenges 21 Any Party or Non-Party may challenge a designation of confidentiality at 22 any time that is consistent with the Court’s Scheduling Order. 23 B. Meet and Confer 24 The Challenging Party shall initiate the dispute resolution process under 25 Local Rule 37.1 et seq. 26 C. 27 Designating Party. Frivolous challenges, and those made for an improper purpose 28 The burden of persuasion in any such challenge proceeding shall be on the vii PROTECTIVE ORDER 1 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 2 expose the Challenging Party to sanctions. Unless the Designating Party has 3 waived or withdrawn the confidentiality designation, all parties shall continue to 4 afford the material in question the level of protection to which it is entitled under 5 the Producing Party’s designation until the Court rules on the challenge. 6 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL 7 A. Basic Principles 8 1. A Receiving Party may use Protected Material that is disclosed or 9 produced by another Party or by a Non-Party in connection with this Action 10 only for prosecuting, defending, or attempting to settle this Action. Such 11 Protected Material may be disclosed only to the categories of persons and 12 under the conditions described in this Order. When the Action has been 13 terminated, a Receiving Party must comply with the provisions of Section 14 XIV below. 15 2. 16 Party at a location and in a secure manner that ensures that access is limited 17 to the persons authorized under this Order. 18 B. Protected Material must be stored and maintained by a Receiving Disclosure of “CONFIDENTIAL” Information or Items 19 1. Unless otherwise ordered by the Court or permitted in writing by the 20 Designating Party, a Receiving Party may disclose any information or item 21 designated “CONFIDENTIAL” only to: 22 a. The Receiving Party’s Outside Counsel of Record in this 23 Action, as well as employees of said Outside Counsel of Record to 24 whom it is reasonably necessary to disclose the information for this 25 Action; 26 27 28 viii PROTECTIVE ORDER 1 b. 2 Counsel) of the Receiving Party to whom disclosure is reasonably 3 necessary for this Action; 4 c. 5 whom disclosure is reasonably necessary for this Action and who 6 have signed the “Acknowledgment and Agreement to Be Bound” 7 (Exhibit A); 8 d. The Court and its personnel; 9 e. Court reporters and their staff; 10 f. Professional jury or trial consultants, mock jurors, and 11 Professional Vendors to whom disclosure is reasonably necessary for 12 this Action and who, to the extent practicable, have signed the 13 “Acknowledgment and Agreement to be Bound” attached as 14 Exhibit A hereto; 15 g. 16 information or a custodian or other person who otherwise possessed 17 or knew the information; 18 h. 19 Counsel to whom disclosure is reasonably necessary provided that: 20 (i) the deposing Party requests that the witness sign the 21 “Acknowledgment and Agreement to Be Bound” or otherwise obtains 22 from the witness and their Counsel an on-the-record commitment to 23 be bound, and (ii) the witness and their Counsel are not permitted to 24 keep any confidential information unless otherwise agreed by the 25 Designating Party or ordered by the Court. Pages of transcribed 26 deposition testimony or exhibits to depositions that reveal Protected 27 Material may be separately bound by the court reporter and may not 28 The officers, directors, and employees (including House Experts (as defined in this Order) of the Receiving Party to The author or recipient of a document containing the During their depositions, witnesses in the Action and their ix PROTECTIVE ORDER 1 be disclosed to anyone except as permitted under this Protective 2 Order; and 3 i. 4 personnel, mutually agreed upon by the Parties engaged in settlement 5 discussions. Any mediator or settlement officer, and their supporting 6 IX. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 7 IN OTHER LITIGATION 8 A. 9 that compels disclosure of any information or items designated in this Action as 10 If a Party is served with a subpoena or a court order issued in other litigation “CONFIDENTIAL,” that Party must: 11 1. Promptly notify in writing the Designating Party. Such notification 12 shall include a copy of the subpoena or court order; 13 2. 14 to issue in the other litigation that some or all of the material covered by the 15 subpoena or order is subject to this Protective Order. Such notification shall 16 include a copy of this Protective Order; and 17 3. 18 pursued by the Designating Party whose Protected Material may be affected. Promptly notify in writing the party who caused the subpoena or order Cooperate with respect to all reasonable procedures sought to be 19 B. If the Designating Party timely seeks a protective order in the other 20 litigation, the Party served with the subpoena or court order shall not produce any 21 information designated in this action as “CONFIDENTIAL” before a 22 determination by the Court from which the subpoena or order issued, unless the 23 Party has obtained the Designating Party’s permission. The Designating Party 24 shall bear the burden and expense of seeking protection in that Court and nothing 25 in these provisions should be construed as authorizing or encouraging a Receiving 26 Party in this Action to disobey a lawful directive from another Court. 27 28 x PROTECTIVE ORDER 1 X. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 2 PRODUCED IN THIS LITIGATION 3 A. 4 Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in this Action is protected by the remedies and relief 6 provided by this Order. Nothing in these provisions should be construed as 7 prohibiting a Non-Party from seeking additional protections. 8 B. 9 a Non-Party’s confidential information in its possession, and the Party is subject to The terms of this Order are applicable to information produced by a Non- In the event that a Party is required, by a valid discovery request, to produce 10 an agreement with the Non-Party not to produce the Non-Party’s confidential 11 information, then the Party shall: 12 1. Promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 2. 16 in this Action, the relevant discovery request(s), and a reasonably specific 17 description of the information requested; and 18 3. 19 Party, if requested. Promptly provide the Non-Party with a copy of the Protective Order Make the information requested available for inspection by the Non- 20 C. 21 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and 27 expense of seeking protection in this court of its Protected Material. 28 If the Non-Party fails to seek a protective order from this court within 14 xi PROTECTIVE ORDER 1 XI. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Protective Order, the Receiving Party must immediately (1) notify in writing the 5 Designating Party of the unauthorized disclosures, (2) use its best efforts to 6 retrieve all unauthorized copies of the Protected Material, (3) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this 8 Order, and (4) request such person or persons to execute the “Acknowledgment 9 and Agreement to be Bound” that is attached as Exhibit A. 10 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 PROTECTED MATERIAL 12 A. 13 inadvertently produced material is subject to a claim of privilege or other 14 protection, the obligations of the Receiving Parties are those set forth in Federal 15 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 16 whatever procedure may be established in an e-discovery order that provides for 17 production without prior privilege review. 18 B. 19 agree to and the Court orders protection of privileged and otherwise protected 20 documents against claims of waiver (including as against third parties and in other 21 proceedings) as follows: When a Producing Party gives notice to Receiving Parties that certain In accordance with Federal Rule of Evidence 502(d) and (e), the Parties 22 1. 23 legally recognized claim of privilege, including without limitation attorney- 24 client privilege and the work-product doctrine, to a Receiving Party, does 25 not constitute the voluntary disclosure of such document. 26 2. 27 result in the waiver of any privilege, evidentiary protection, or other 28 The production of documents by a Producing Party subject to a The inadvertent production of any documents in this action does not xii PROTECTIVE ORDER 1 protection associated with such document as to the Receiving Party or any 2 third Parties and does not result in any waiver, including subject-matter 3 waiver, of any kind. 4 Accordingly, by operation of the Parties’ agreement and Court order, the Parties 5 are afforded the protections of Federal Rule of Evidence 502(d) and (e). 6 XIII. MISCELLANEOUS 7 A. Right to Further Relief 8 Nothing in this Order abridges the right of any person to seek its 9 modification by the Court in the future. 10 B. Right to Assert Other Objections 11 By stipulating to the entry of this Protective Order, no Party waives any 12 right it otherwise would have to object to disclosing or producing any 13 information or item on any ground not addressed in this Protective Order. 14 Similarly, no Party waives any right to object on any ground to use in 15 evidence of any of the material covered by this Protective Order. 16 C. Filing Protected Material 17 A Party that seeks to file under seal any Protected Material must comply 18 with Civil Local Rule 79-5. Protected Material may be filed under only seal 19 pursuant to a court order authorizing the sealing of the specific Protected 20 Material at issue. If a Party’s request to file Protected Material under seal is 21 denied by the Court, then the Receiving Party may file the information in the 22 public record unless otherwise instructed by the Court. 23 XIV. FINAL DISPOSITION 24 A. 25 sixty (60) days of a written request by the Designating Party, each Receiving Party 26 must return all Protected Material to the Producing Party or destroy such material. 27 As used in this subdivision, “all Protected Material” includes all copies, abstracts, 28 After the final disposition of this Action, as defined in Section V, within xiii PROTECTIVE ORDER 1 compilations, summaries, and any other format reproducing or capturing any of the 2 Protected Material. Whether the Protected Material is returned or destroyed, the 3 Receiving Party must submit a written certification to the Producing Party (and, if 4 not the same person or entity, to the Designating Party) by the 60 day deadline that 5 (1) identifies (by category, where appropriate) all the Protected Material that was 6 returned or destroyed and (2) affirms that the Receiving Party has not retained any 7 copies, abstracts, compilations, summaries or any other format reproducing or 8 capturing any of the Protected Material. Notwithstanding this provision, Counsel 9 are entitled to retain an archival copy of all pleadings, motion papers, trial, 10 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 11 and trial exhibits, expert reports, attorney work product, and consultant and expert 12 work product, even if such materials contain Protected Material. Any such 13 archival copies that contain or constitute Protected Material remain subject to this 14 Protective Order as set forth in Section V. 15 B. 16 measures including, without limitation, contempt proceedings and/or monetary 17 sanctions. Any violation of this Order may be punished by any and all appropriate 18 19 20 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 21 22 23 Dated: 24 CHARLES F. EICK 25 United States Magistrate Judge 26 27 28 xiv PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 I, [print or type full name], of [print or type full address], declare under penalty of perjury that I have read 6 7 in its entirety and understand the Protective Order that was issue by the United States 8 District Court for the Central District of California on ______________ in the case of . I agree to comply with and to be bound by all the 9 10 terms of this Protective Order and I understand and acknowledge that failure to so 11 comply could expose me to sanctions and punishment in the nature of contempt. I 12 solemnly promise that I will not disclose in any manner any information or item that is 13 subject to this Protective Order to any person or entity except in strict compliance with 14 the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for 16 the Central District of California for the purpose of enforcing the terms of this Protective 17 Order, even if such enforcement proceedings occur after termination of this action. I 18 hereby appoint 19 [print or type full name] of [print or type full address and telephone number] as my California 20 agent for service of process in connection with this action or any proceedings related to 21 enforcement of this Protective Order. 22 Date: 23 City and State where sworn and signed: 24 Printed Name: 25 Signature: 26 27 28 xv PROTECTIVE ORDER

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