Hueman LLC v. Alaska Airlines, Inc.

Filing 29

Stipulated PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Joint APPLICATION for Protective Order(Stipulated) 28 . (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 HUEMAN LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, Plaintiff, 13 14 15 vs. ALASKA AIRLINES, INC., AN ALASKA CORPORATION, Defendant. 16 17 ) Case No. 2:20-cv-06539-DSF-E ) ) STIPULATED PROTECTIVE ) ORDER ) ) ) ) ) ) ) ) ) 18 19 1. A. PURPOSES AND LIMITATIONS 20 Discovery in this action is likely to involve production of confidential, 21 proprietary, or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may 23 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 24 enter the following Stipulated Protective Order. The parties acknowledge that this 25 Order does not confer blanket protections on all disclosures or responses to 26 discovery and that the protection it affords from public disclosure and use extends 27 only to the limited information or items that are entitled to confidential treatment 28 under the applicable legal principles. The parties further acknowledge, as set forth STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E 1 in Section 12.3, below, that this Stipulated Protective Order does not entitle them 2 to file confidential information under seal; Local Rule 79-5 sets forth the 3 procedures that must be followed and the standards that will be applied when a 4 party seeks permission from the Court to file material under seal. 5 B. GOOD CAUSE STATEMENT 6 This action is likely to involve trade secrets, customer and pricing lists and 7 other valuable research, development, commercial, financial, technical and/or 8 proprietary information for which warrants special protection from public 9 disclosure or use for any purpose other than prosecution of this action. Such 10 confidential and proprietary materials and information consist of, among other 11 things, confidential business or financial information, information regarding 12 confidential business practices, or other confidential research, development, or 13 commercial information (including information implicating privacy rights of third 14 parties), information otherwise generally unavailable to the public, or which may 15 be privileged or otherwise protected from disclosure under state or federal statutes, 16 court rules, case decisions, or common law. Accordingly, to expedite the flow of 17 information, facilitate the prompt resolution of disputes over confidentiality of 18 discovery materials, adequately protect information the parties are entitled to keep 19 confidential, ensure that the parties are permitted reasonably necessary uses of 20 such material in preparation for and in the conduct of trial, address the handling of 21 such material at the end of the litigation, and serve the ends of justice, a protective 22 order for such information is justified in this matter. It is the intent of the parties 23 that information will not be designated as confidential for tactical reasons and that 24 nothing be so designated without a good faith belief that it has been maintained in 25 a confidential, non-public manner, and there is good cause why it should not be 26 part of the public record of this case. 27 / / 28 / / STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -2- 1 2. 2 DEFINITIONS 2.1 Action: The lawsuit entitled Hueman LLC v. Alaska Airlines, Inc., 3 pending in the United States District Court for the Central District of California 4 and bearing Index Number 2:20-cv-06539-DSF-E. 5 6 2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 7 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 8 how it is generated, stored or maintained) or tangible things that qualify for 9 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 10 the Good Cause Statement. 11 12 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 13 2.5 Designating Party: a Party or Non-Party that designates information 14 or items 15 “CONFIDENTIAL.” 16 2.6 that it produces in disclosures or in responses to discovery as Disclosure or Discovery Material: all items or information, regardless 17 of the medium or manner in which it is generated, stored, or maintained (including, 18 among other things, testimony, transcripts, and tangible things), that are produced 19 or generated in disclosures or responses to discovery requests in this matter. 20 2.7 Expert: a person with specialized knowledge or experience in a 21 matter pertinent to the litigation who has been retained by a Party or its counsel to 22 serve as an expert witness or as a consultant in this Action. 23 2.8 House Counsel: attorneys who are employees of a party to this 24 Action. House Counsel does not include Outside Counsel of Record or any other 25 outside counsel. 26 2.9 Non-Party: any natural person, partnership, corporation, association, 27 or other legal entity not named as a Party to this action. 28 / / STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -3- 1 2.10 Outside Counsel of Record: attorneys who are not employees of a 2 party to this Action but are retained to represent or advise a party to this Action 3 and have appeared in this Action on behalf of that party or are affiliated with a law 4 firm which has appeared on behalf of that party, and includes support staff. 5 2.11 Party: any party to this Action, including all of its officers, directors, 6 employees, consultants, retained experts, and Outside Counsel of Record (and their 7 support staffs). 8 9 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 10 2.13 Professional Vendors: persons or entities that provide litigation 11 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 12 demonstrations, and organizing, storing, or retrieving data in any form or medium) 13 and their employees and subcontractors. 14 2.14 Protected Material: 15 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 16 2.15 Receiving Party: 17 Material from a Producing Party. 18 3. a Party that receives Disclosure or Discovery SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. 24 Any use of Protected Material at trial shall be governed by the orders of the 25 trial judge. This Order does not govern the use of Protected Material at trial. 26 4. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations 28 imposed by this Order shall remain in effect until a Designating Party agrees STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -4- 1 otherwise in writing or a court order otherwise directs. Final disposition shall be 2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, 3 with or without prejudice; and (2) final judgment herein after the completion and 4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 5 including the time limits for filing any motions or applications for extension of 6 time pursuant to applicable law. 7 5. 8 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 9 Each Party or Non-Party that designates information or items for protection under 10 this Order must take care to limit any such designation to specific material that 11 qualifies under the appropriate standards. The Designating Party must designate 12 for protection only those parts of material, documents, items, or oral or written 13 communications that qualify so that other portions of the material, documents, 14 items, or communications for which protection is not warranted are not swept 15 unjustifiably within the ambit of this Order. 16 Mass, indiscriminate, or routinized designations are prohibited. 17 Designations that are shown to be clearly unjustified or that have been made for an 18 improper purpose (e.g., to unnecessarily encumber the case development process 19 or to impose unnecessary expenses and burdens on other parties) may expose the 20 Designating Party to sanctions. 21 If it comes to a Designating Party’s attention that information or items that it 22 designated for protection do not qualify for protection, that Designating Party must 23 promptly notify all other Parties that it is withdrawing the inapplicable designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in 25 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 26 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 27 under this Order must be clearly so designated before the material is disclosed or 28 produced. STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -5- 1 Designation in conformity with this Order requires: 2 (a) for information in documentary form (e.g., paper or electronic 3 documents, but excluding transcripts of depositions or other pretrial or trial 4 proceedings), that the Producing Party affix at a minimum, the legend 5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 6 contains protected material. If only a portion or portions of the material on a page 7 qualifies for protection, the Producing Party also must clearly identify the 8 protected portion(s) (e.g., by making appropriate markings in the margins). 9 A Party or Non-Party that makes original documents available for inspection 10 need not designate them for protection until after the inspecting Party has indicated 11 which documents it would like copied and produced. During the inspection and 12 before the designation, all of the material made available for inspection shall be 13 deemed “CONFIDENTIAL.” 14 documents it wants copied and produced, the Producing Party must determine 15 which documents, or portions thereof, qualify for protection under this Order. 16 Then, before producing the specified documents, the Producing Party must affix 17 the “CONFIDENTIAL legend” to each page that contains Protected Material. If 18 only a portion or portions of the material on a page qualifies for protection, the 19 Producing Party also must clearly identify the protected portion(s) (e.g., by making 20 appropriate markings in the margins). 21 (b) After the inspecting Party has identified the for testimony given in depositions that the Designating Party identify 22 the Disclosure or Discovery Material on the record, before the close of the 23 deposition all protected testimony. 24 (c) for information produced in some form other than documentary and 25 for any other tangible items, that the Producing Party affix in a prominent place on 26 the exterior of the container or containers in which the information is stored the 27 legend “CONFIDENTIAL.” 28 warrants protection, the Producing Party, to the extent practicable, shall identify STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E If only a portion or portions of the information -6- 1 the protected portion(s). 2 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 3 failure to designate qualified information or items does not, standing alone, waive 4 the Designating Party’s right to secure protection under this Order for such 5 material. Upon timely correction of a designation, the Receiving Party must make 6 reasonable efforts to assure that the material is treated in accordance with the 7 provisions of this Order. 8 6. 9 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges: Any Party or Non-Party may challenge a 10 designation of confidentiality at any time that is consistent with the Court’s 11 Scheduling Order. 12 13 6.2 Meet and Confer: The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 14 6.3 The burden of persuasion in any such challenge proceeding shall be 15 on the Designating Party. Frivolous challenges, and those made for an improper 16 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 17 parties) may expose the Challenging Party to sanctions. Unless the Designating 18 Party has waived or withdrawn the confidentiality designation, all parties shall 19 continue to afford the material in question the level of protection to which it is 20 entitled under the Producing Party’s designation until the Court rules on the 21 challenge. 22 7. 23 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles: A Receiving Party may use Protected Material that 24 is disclosed or produced by another Party or by a Non-Party in connection with this 25 Action only for prosecuting, defending, or attempting to settle this Action. Such 26 Protected Material may be disclosed only to the categories of persons and under 27 the conditions described in this Order. When the Action has been terminated, a 28 Receiving Party must comply with the provisions of section 13 below (FINAL STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -7- 1 DISPOSITION). 2 Protected Material must be stored and maintained by a Receiving Party at a 3 location and in a secure manner that ensures that access is limited to the persons 4 authorized under this Order. 5 7.2 Disclosure of “CONFIDENTIAL” Information or Items: Unless 6 otherwise ordered by the Court or permitted in writing by the Designating Party, a 7 Receiving 8 “CONFIDENTIAL” only to: 9 (a) Party may disclose any information or item designated the Receiving Party’s Outside Counsel of Record in this Action, 10 as well as employees of said Outside Counsel of Record to whom it is reasonably 11 necessary to disclose the information for this Action; 12 (b) the officers, directors, and employees (including House 13 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for 14 this Action; 15 (c) Experts (as defined in this Order) of the Receiving Party to 16 whom disclosure is reasonably necessary for this Action and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (d) the Court and its personnel; 19 (e) court reporters and their staff; 20 (f) professional jury or trial consultants, mock jurors, and 21 Professional Vendors to whom disclosure is reasonably necessary for this Action 22 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 23 A); 24 (g) the author or recipient of a document containing the 25 information or a custodian or other person who otherwise possessed or knew the 26 information; 27 28 (h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary, provided: STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -8- (1) the 1 deposing party requests that the witness sign the form attached hereto as Exhibit A 2 hereto; and (2) they will not be permitted to keep any confidential information 3 unless they sign the form attached hereto as Exhibit A, unless otherwise agreed by 4 the Designating Party or ordered by the Court. Pages of transcribed deposition 5 testimony or exhibits to depositions that reveal Protected Material maybe 6 separately bound by the court reporter and may not be disclosed to anyone except 7 as permitted under this Stipulated Protective Order; and 8 9 (i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement 10 discussions. 11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 12 IN OTHER LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation 14 that compels disclosure of any information or items designated in this Action as 15 “CONFIDENTIAL,” that Party must: 16 17 18 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena 19 or order to issue in the other litigation that some or all of the material covered by 20 the subpoena or order is subject to this Protective Order. Such notification shall 21 include a copy of this Stipulated Protective Order; and 22 23 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 24 If the Designating Party timely seeks a protective order, the Party served 25 with the subpoena or court order shall not produce any information designated in 26 this action as “CONFIDENTIAL” before a determination by the court from which 27 the subpoena or order issued, unless the Party has obtained the Designating Party’s 28 permission. The Designating Party shall bear the burden and expense of seeking STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E -9- 1 protection in that court of its confidential material and nothing in these provisions 2 should be construed as authorizing or encouraging a Receiving Party in this Action 3 to disobey a lawful directive from another court. 4 9. 5 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 6 (a) The terms of this Order are applicable to information produced 7 by a Non-Party in this Action and designated as “CONFIDENTIAL.” 8 information produced by Non-Parties in connection with this litigation is protected 9 by the remedies and relief provided by this Order. Nothing in these provisions 10 should be construed as prohibiting a Non-Party from seeking additional 11 protections. 12 (b) Such In the event that a Party is required, by a valid discovery 13 request, to produce a Non-Party’s confidential information in its possession, and 14 the Party is subject to an agreement with the Non-Party not to produce the Non- 15 Party’s confidential information, then the Party shall: 16 (1) promptly notify in writing the Requesting Party and the 17 Non-Party that some or all of the information requested is 18 subject to a confidentiality agreement with a Non-Party; 19 (2) promptly provide the Non-Party with a copy of the 20 Stipulated Protective Order in this Action, the relevant 21 discovery 22 description of the information requested; and 23 (3) 24 25 request(s), and a reasonably specific make the information requested available for inspection by the Non-Party, if requested. (c) If the Non-Party fails to seek a protective order from this Court 26 within 14 days of receiving the notice and accompanying information, the 27 Receiving Party may produce the Non-Party’s confidential information responsive 28 to the discovery request. If the Non-Party timely seeks a protective order, the STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 10 - 1 Receiving Party shall not produce any information in its possession or control that 2 is subject to the confidentiality agreement with the Non-Party before a 3 determination by the Court. Absent a court order to the contrary, the Non-Party 4 shall bear the burden and expense of seeking protection in this Court of its 5 Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 7 If a Receiving Party learns that, by inadvertence or otherwise, it has 8 disclosed Protected Material to any person or in any circumstance not authorized 9 under this Stipulated Protective Order, the Receiving Party must immediately (a) 10 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 11 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 12 the person or persons to whom unauthorized disclosures were made of all the terms 13 of this Order, and (d) request such person or persons to execute the 14 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 15 A. 16 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 17 PROTECTED MATERIAL 18 When a Producing Party gives notice to Receiving Parties that certain 19 inadvertently produced material is subject to a claim of privilege or other 20 protection, the obligations of the Receiving Parties are those set forth in Federal 21 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 22 whatever procedure may be established in an e-discovery order that provides for 23 production without prior privilege review. Pursuant to Federal Rule of Evidence 24 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 25 of a communication or information covered by the attorney-client privilege or 26 work product protection, the parties may incorporate their agreement in the 27 stipulated protective order submitted to the Court. 28 / / STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 11 - 1 12. MISCELLANEOUS 2 12.1 Right to Further Relief: Nothing in this Order abridges the right of 3 any person to seek its modification by the Court in the future. 4 12.2 Right to Assert Other Objections: By stipulating to the entry of this 5 Protective Order no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in 7 this Stipulated Protective Order. Similarly, no Party waives any right to object on 8 any ground to use in evidence of any of the material covered by this Protective 9 Order. 10 12.3 Filing Protected Material: A Party that seeks to file under seal any 11 Protected Material must comply with Civil Local Rule 79-5. Protected Material 12 may only be filed under seal pursuant to a court order authorizing the sealing of the 13 specific Protected Material at issue. If a party's request to file Protected Material 14 under seal is denied by the Court, then the Receiving Party may file the 15 information in the public record unless otherwise instructed by the Court. 16 13. FINAL DISPOSITION 17 After the final disposition of this Action, as defined in paragraph 4, within 18 60 days of a written request by the Designating Party, each Receiving Party must 19 return all Protected Material to the Producing Party or destroy such material. As 20 used in this subdivision, “all Protected Material” includes all copies, abstracts, 21 compilations, summaries, and any other format reproducing or capturing any of the 22 Protected Material. Whether the Protected Material is returned or destroyed, the 23 Receiving Party must submit a written certification to the Producing Party (and, if 24 not the same person or entity, to the Designating Party) by the 60 day deadline that 25 (1) identifies (by category, where appropriate) all the Protected Material that was 26 returned or destroyed and (2) affirms that the Receiving Party has not retained any 27 copies, abstracts, compilations, summaries or any other format reproducing or 28 capturing any of the Protected Material. Notwithstanding this provision, Counsel STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 12 - 1 are entitled to retain an archival copy of all pleadings, motion papers, trial, 2 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 3 and trial exhibits, expert reports, attorney work product, and consultant and expert 4 work product, even if such materials contain Protected Material. 5 archival copies that contain or constitute Protected Material remain subject to this 6 Protective Order as set forth in Section 4 (DURATION). 7 14. 8 measures including, without limitation, contempt proceedings and/or monetary 9 sanctions. Any such Any violation of this Order may be punished by any and all appropriate 10 11 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD: 12 13 Dated: November 18, 2020 14 15 JORDAN RAPHAEL (SBN# 252344) BRYON RAPHAEL LLP 1055 West 7th Street, Suite 330 Los Angeles, California 90017 - and - 16 ANDREW GERBER (admitted Pro Hac Vice) KUSHNIRSKY GERBER PLLC 27 Union Square West, Suite 301 New York, New York 10003 17 18 19 20 By: /s/ Andrew Gerber 21 Attorneys for Plaintiff HUEMAN LLC 22 23 ATTESTED that all other signatories listed, and on whose behalf this document is 24 submitted, concur in its content and have authorized its filing: 25 Dated: November 18, 2020 CONDON & FORSYTH LLP 26 27 By: /s/ Scott D. Cunningham SCOTT D. CUNNINGHAM Attorneys for Defendant ALASKA AIRLINES, INC. 28 STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 13 - 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ______________________________ [print or type full name], of 4 ___________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Central District of 7 California on [________] in the case of HUEMAN LLC, A California Limited 8 Liability Company v, ALASKA AIRLINES, INC., an Alaska corporation, Case 9 No. 2:20-cv-06539-DSF-E. I agree to comply with and to be bound by all the 10 terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person 14 or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint 19 [print or type full name] of _________________________________________ 20 [print or type full address and telephone number] as my California agent for 21 service of process in connection with this action or any proceedings related to 22 enforcement of this Stipulated Protective Order. 23 Date: ___________________________________ 24 City and State where sworn and signed: 25 Printed name: ___________________________________ 26 Signature: ______________________________________ 27 28 STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 14 - ________________________ ______________________________ 1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 3 DATED: __________________ 11/18/20 4 /S/ CHARLES F. EICK ________________________________ 5 The Hon. Charles F. Eick United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO.: 2:20-cv-06539-DSF-E - 15 -

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