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**WITHDRAWN** PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order. 104 (See document for details) (vmun)

1 Robert Tauler (SBN 241964)

[e-mail]

2 Valerie Saryan (SBN 297115)

[e-mail]

3 Gil Peles (SBN 238889)

[e-mail]

4 Tauler Smith LLP

626 Wilshire Boulevard, Suite 510

5 Los Angeles, California 90017
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Tel: [phone]

Attorneys for Plaintiff

7 ENTTech Media Group LLC
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ENTTECH MEDIA GROUP LLC

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Plaintiff,

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v.

Case No. 2:20-cv-06298-JWH (Ex)
[PROPOSED] PROTECTIVE
ORDER

OKULARITY, INC., et al.
Defendants.

Hon. Charles F. Eick

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PROTECTIVE ORDER

1 I.
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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

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parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public

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disclosure and use extends only to the limited information or items that are entitled

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to confidential treatment under the applicable legal principles. The parties further

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acknowledge, as set forth in Section XIII(C) below, that this Protective Order does

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not entitle them to file confidential information under seal; Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the Court to file material under seal.

14 II.

GOOD CAUSE STATEMENT

15

A.

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order to expedite the flow of information, to facilitate the prompt resolution of

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disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that the parties

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are permitted reasonable and necessary uses of such material in connection with

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this action, to address their handling of such material at the end of the litigation,

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and to serve the ends of justice, a protective order for such information is justified

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in this matter. The parties shall not designate any information/documents as

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confidential without a good faith belief that such information/documents have been

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maintained in a confidential, non-public manner, and that there is good cause or a

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compelling reason why it should not be part of the public record of this case.

26 III.

DEFINITIONS

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A.

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This action is likely to involve the production of confidential records, and in

Action: This pending federal lawsuit.
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PROTECTIVE ORDER

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B.

Challenging Party: A Party or Non-Party that challenges the designation of

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information or items under this Order.

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C.

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

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

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Cause Statement.

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D.

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support staff).

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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

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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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F.

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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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G.

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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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H.

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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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I.

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other legal entity not named as a Party to this action.

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J.

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

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

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which has appeared on behalf of that party, and includes support staff.

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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

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PROTECTIVE ORDER

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K.

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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L.

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Discovery Material in this Action.

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M.

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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.

Producing Party: A Party or Non-Party that produces Disclosure or
Professional Vendors: Persons or entities that provide litigation support

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N.

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as “CONFIDENTIAL.”

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O.

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from a Producing Party.

14 IV.

SCOPE

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A.

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

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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

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B.

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

22 V.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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

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

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

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

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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

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PROTECTIVE ORDER

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

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

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time pursuant to applicable law.

4 VI.

DESIGNATING PROTECTED MATERIAL

5

A.

Exercise of Restraint and Care in Designating Material for Protection

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1.

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

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify so that

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other portions of the material, documents, items, or communications for

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which protection is not warranted are not swept unjustifiably within the

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ambit of this Order.

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2.

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Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber the case

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development process or to impose unnecessary expenses and burdens on

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other parties) may expose the Designating Party to sanctions.

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3.

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that it designated for protection do not qualify for protection, that

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Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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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

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1.

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

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Section IV(B)(2)(b) and Section IV(C) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under

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PROTECTIVE ORDER

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

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produced.

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2.

Designation in conformity with this Order requires the following:

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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

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

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legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”),

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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

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Producing Party also must clearly identify the protected portion(s)

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

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b.

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for inspection need not designate them for protection until after the

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inspecting Party has indicated which documents it would like copied

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

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of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL

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

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

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the Producing Party also must clearly identify the protected portion(s)

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

A Party or Non-Party that makes original documents available

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c.

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identify the Disclosure or Discovery Material on the record, before

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the close of the deposition all protected testimony.

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d.

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

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

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

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portion or portions of the information warrants protection, the

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

For information produced in form other than document and for

portion(s).

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For testimony given in depositions, that the Designating Party

C.

Inadvertent Failure to Designate

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1.

If promptly corrected by notice to a Receiving Party, an inadvertent

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

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

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such material.

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2.

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

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with the provisions of this Order.

Upon prompt correction of a designation, the Receiving Party must

19 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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A.

Timing of Challenges

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Any Party or Non-Party may challenge a designation of confidentiality at

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any time that is consistent with the Court’s Scheduling Order.

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B.

Meet and Confer

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The Challenging Party shall initiate the dispute resolution process under

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Local Rule 37.1 et seq.

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C.

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Designating Party. Frivolous challenges, and those made for an improper purpose

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The burden of persuasion in any such challenge proceeding shall be on the

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has

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waived or withdrawn the confidentiality designation, all parties shall continue to

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

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the Producing Party’s designation until the Court rules on the challenge.

6 VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
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A.

Basic Principles

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1.

A Receiving Party may use Protected Material that is disclosed or

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

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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

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

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terminated, a Receiving Party must comply with the provisions of Section

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XIV below.

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2.

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

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to the persons authorized under this Order.

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B.

Protected Material must be stored and maintained by a Receiving

Disclosure of “CONFIDENTIAL” Information or Items

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1.

Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated “CONFIDENTIAL” only to:

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a.

The Receiving Party’s Outside Counsel of Record in this

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Action, as well as employees of said Outside Counsel of Record to

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whom it is reasonably necessary to disclose the information for this

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Action;

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PROTECTIVE ORDER

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b.

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Counsel) of the Receiving Party to whom disclosure is reasonably

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necessary for this Action;

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c.

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whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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d.

The Court and its personnel;

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e.

Court reporters and their staff;

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f.

Professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for

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this Action and who, to the extent practicable, have signed the

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“Acknowledgment and Agreement to be Bound” attached as

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Exhibit A hereto;

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g.

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information or a custodian or other person who otherwise possessed

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or knew the information;

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h.

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Counsel to whom disclosure is reasonably necessary provided that:

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(i) the deposing Party requests that the witness sign the

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“Acknowledgment and Agreement to Be Bound” or otherwise obtains

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from the witness and their Counsel an on-the-record commitment to

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be bound, and (ii) the witness and their Counsel are not permitted to

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keep any confidential information unless otherwise agreed by the

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Designating Party or ordered by the Court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected

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

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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

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PROTECTIVE ORDER

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be disclosed to anyone except as permitted under this Protective

2

Order; and

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i.

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personnel, mutually agreed upon by the Parties engaged in settlement

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discussions.

Any mediator or settlement officer, and their supporting

6 IX.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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A.

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

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

“CONFIDENTIAL,” that Party must:

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1.

Promptly notify in writing the Designating Party. Such notification

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shall include a copy of the subpoena or court order;

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2.

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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 Protective Order; and

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3.

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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

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B.

If the Designating Party timely seeks a protective order in the other

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litigation, the Party served with the subpoena or court order shall not produce any

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information designated in this action as “CONFIDENTIAL” before a

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determination by the Court from which the subpoena or order issued, unless the

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Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that Court and nothing

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in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this Action to disobey a lawful directive from another Court.

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PROTECTIVE ORDER

1 X.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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A.

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Party in this Action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in this Action is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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B.

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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

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

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information, then the Party shall:

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1.

Promptly notify in writing the Requesting Party and the Non-Party

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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.

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

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description of the information requested; and

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3.

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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-

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C.

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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If the Non-Party fails to seek a protective order from this court within 14

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PROTECTIVE ORDER

1 XI.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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Protective Order, the Receiving Party must immediately (1) notify in writing the

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Designating Party of the unauthorized disclosures, (2) use its best efforts to

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retrieve all unauthorized copies of the Protected Material, (3) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (4) request such person or persons to execute the “Acknowledgment

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

10 XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
11

PROTECTED MATERIAL

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A.

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

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

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review.

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B.

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agree to and the Court orders protection of privileged and otherwise protected

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documents against claims of waiver (including as against third parties and in other

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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

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1.

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legally recognized claim of privilege, including without limitation attorney-

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client privilege and the work-product doctrine, to a Receiving Party, does

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not constitute the voluntary disclosure of such document.

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2.

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result in the waiver of any privilege, evidentiary protection, or other

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The production of documents by a Producing Party subject to a

The inadvertent production of any documents in this action does not

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PROTECTIVE ORDER

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protection associated with such document as to the Receiving Party or any

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third Parties and does not result in any waiver, including subject-matter

3

waiver, of any kind.

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Accordingly, by operation of the Parties’ agreement and Court order, the Parties

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are afforded the protections of Federal Rule of Evidence 502(d) and (e).

6 XIII. MISCELLANEOUS
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A.

Right to Further Relief

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Nothing in this Order abridges the right of any person to seek its

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modification by the Court in the future.

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B.

Right to Assert Other Objections

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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

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information or item on any ground not addressed in this Protective Order.

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Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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C.

Filing Protected Material

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A Party that seeks to file under seal any Protected Material must comply

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with Civil Local Rule 79-5. Protected Material may be filed under only seal

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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

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denied by the Court, then the Receiving Party may file the information in the

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public record unless otherwise instructed by the Court.

23 XIV. FINAL DISPOSITION
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A.

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sixty (60) days of a written request by the Designating Party, each Receiving Party

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

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

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After the final disposition of this Action, as defined in Section V, within

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

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Protected Material. Whether the Protected Material is returned or destroyed, the

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Receiving Party must submit a written certification to the Producing Party (and, if

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

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

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

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

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

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

10

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

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

12

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

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

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Protective Order as set forth in Section V.

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B.

16

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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20 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
21
22
23 Dated:
24

CHARLES F. EICK

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United States Magistrate Judge

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PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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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:
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