Hurford Global LLC v. ROM 3 California, LLC et al

Filing 94

STIPULATED PROTECTIVE ORDER by Magistrate Judge Pedro V. Castillo re Stipulation for Protective Order #92 . (see document for details) (et)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10

HURFORD GLOBAL, LLC,

11

Plaintiff,

12
13
14
15
16
17
18

Case No. 2:20-cv-10203-JVS-PVCx
STIPULATED PROTECTIVE
ORDER

v.
ROM TECHNOLOGIES, INC., PETER
ARN and SANFORD A. GOMBERG,
Defendants,
And RELATED COUNTERCLAIMS.

19
20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

1.

INTRODUCTION

2

1.1

PURPOSES AND LIMITS OF THIS ORDER

3

Discovery in this action is likely to involve production of confidential,

4

proprietary, or private information for which special protection from public

5

disclosure and from use for any purpose other than prosecuting this litigation may

6

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

7

enter the following Stipulated Protective Order. The parties acknowledge that this

8

Order does not confer blanket protections on all disclosures or responses to

9

discovery and that the protection it affords from public disclosure and use extends

10

only to the limited information or items that are entitled to confidential treatment

11

under the applicable legal principles. The parties further acknowledge, as set forth

12

in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

13

file confidential information under seal; Civil Local Rule 79-5 sets forth the

14

procedures that must be followed and the standards that will be applied when a

15

party seeks permission from the court to file material under seal.

16

1.2

17

This case centers on an agreement to exclusively license the ROM3 patents

GOOD CAUSE STATEMENT

18

and trademarks to Defendant ROM Technologies, Inc., f/k/a ROM3 Rehab LLC,

19

and ROM3 California, LLC (hereinafter “ROMTech”), and contract, tort, Illinois

20

consumer law, and trademark claims asserted by plaintiff Hurford Global, LLC

21

(“Hurford”) arising out of it and its alleged termination. The plaintiff is a closely

22

held limited liability company and the defendants are a private corporation and two

23

individuals. Discovery already has been served and responded to which requests

24

production of documents and information about Hurford’s and ROMTech’s

25

confidential business and financial information, such as past sales and revenue,

26

projected sales and revenue, profit and loss statements, future product plans, patent

27

applications and similar documents, corporate documents, including board of

28

directors meeting minutes and resolutions, confidential reports from ROMTech's
1

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

medical consultants on the operation and efficacy of its medical device products.

2

Requests for additional confidential information are anticipated. The requested

3

documents and information are, and future requested documents and information

4

are likely to be, “trade secret or other confidential research, development, or

5

commercial information” within the meaning of Federal Rules of Civil Procedure

6

Rule 26(c)(1)(g), the disclosure of which likely would cause Hurford and

7

ROMTech competitive harm by exposing its trade secrets, product and business

8

plans, and profitability, to competitors (including plaintiff who absent the protective

9

order would be free to use that information to compete with the parties) and could

10

annoy or embarrass ROMTech’s medical advisors who provided information to

11

ROMTech on the promise of confidentiality.

12

In light of the nature of the claims and allegations in this case and the parties’

13

representations that discovery in this case will involve the production of

14

confidential records, and in order to expedite the flow of information, to facilitate

15

the prompt resolution of disputes over confidentiality of discovery materials, to

16

adequately protect information the parties are entitled to keep confidential, to

17

ensure that the parties are permitted reasonable necessary uses of such material in

18

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

19

the litigation, and to serve the ends of justice, a protective order for such

20

information is justified in this matter. The parties shall not designate any

21

information/documents as confidential without a good faith belief that such

22

information/documents have been maintained in a confidential, non-public manner,

23

and that there is good cause or a compelling reason why it should not be part of the

24

public record of this case.

25

2.

DEFINITIONS

26

2.1

Action: this pending federal lawsuit.

27

2.2

Challenging Party: a Party or Non-Party that challenges the

28

designation of information or items under this Order.
2

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

2

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

3

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

4

the Good Cause Statement.

5
6
7

2.4

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

their support staff).
2.5

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

8

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

9

“CONFIDENTIAL.”

10

2.6

Disclosure or Discovery Material: all items or information, regardless

11

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

12

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

13

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

14

2.7

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

15

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

16

an expert witness or as a consultant in this Action.

17

2.8

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

18

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

19

counsel.

20
21
22

2.9

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a

23

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

24

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

25

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

26

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

27

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

28

support staffs).
3

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

1
2

Discovery Material in this Action.

3

2.13 Professional Vendors: persons or entities that provide litigation

4

support services (e.g., photocopying, videotaping, translating, preparing exhibits or

5

demonstrations, and organizing, storing, or retrieving data in any form or medium)

6

and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

7
8

designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery

9
10

Material from a Producing Party.

11

3.

12

The protections conferred by this Stipulation and Order cover not only

13

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

14

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

15

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

16

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial will be governed by the orders of the

17
18

SCOPE

trial judge. This Order does not govern the use of Protected Material at trial.
4.

19

DURATION
Even after final disposition of this litigation, the confidentiality

20
21

obligations imposed by this Order will remain in effect until a Designating Party

22

agrees otherwise in writing or a court order otherwise directs. Final disposition will

23

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

24

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

25

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

26

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

27

pursuant to applicable law.

28

\\
4

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

5.

DESIGNATING PROTECTED MATERIAL

2

5.1

Exercise of Restraint and Care in Designating Material for Protection.

3

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

4

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

5

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

6

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

7

communications that qualify so that other portions of the material, documents,

8

items, or communications for which protection is not warranted are not swept

9

unjustifiably within the ambit of this Order.

10

Mass, indiscriminate, or routinized designations are prohibited. Designations

11

that are shown to be clearly unjustified or that have been made for an improper

12

purpose (e.g., to unnecessarily encumber the case development process or to

13

impose unnecessary expenses and burdens on other parties) may expose the

14

Designating Party to sanctions.

15

If it comes to a Designating Party’s attention that information or items that it

16

designated for protection do not qualify for protection, that Designating Party must

17

promptly notify all other Parties that it is withdrawing the inapplicable designation.

18

5.2

Manner and Timing of Designations. Except as otherwise provided in

19

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

20

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

21

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

22

produced.

23

Designation in conformity with this Order requires:

24

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

25

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

26

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

27

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

28

contains protected material. If only a portion or portions of the material on a page
5

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

qualifies for protection, the Producing Party also must clearly identify the protected

2

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

3

A Party or Non-Party that makes original documents available for inspection

4

need not designate them for protection until after the inspecting Party has indicated

5

which documents it would like copied and produced. During the inspection and

6

before the designation, all of the material made available for inspection will be

7

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

8

documents it wants copied and produced, the Producing Party must determine

9

which documents, or portions thereof, qualify for protection under this Order. Then,

10

before producing the specified documents, the Producing Party must affix the

11

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

12

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

13

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

14

appropriate markings in the margins).

15

(b) for testimony given in depositions that the Designating Party either: (i)

16

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

17

deposition all protected testimony; or (ii) designate the page and line numbers of all

18

designated testimony by giving written notice to opposing counsel and the court

19

reporter within 21 days following receipt of the deposition.

20

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

21

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

22

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

23

“CONFIDENTIAL.” If only a portion or portions of the information warrants

24

protection, the Producing Party, to the extent practicable, will identify the protected

25

portion(s).

26

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

27

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

28

the Designating Party’s right to secure protection under this Order for such
6

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

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

2

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

3

provisions of this Order.

4

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

5

6.1

Timing of Challenges. Any Party or Non-Party may challenge a

6

designation of confidentiality at any time that is consistent with the Court’s

7

Scheduling Order.

8
9
10
11

6.2

Meet and Confer. The Challenging Party will initiate the dispute

resolution process (and, if necessary, file a discovery motion) under Local Rule
37.1 et seq.
6.3

The burden of persuasion in any such challenge proceeding will be on

12

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

13

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

14

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

15

Party has waived or withdrawn the confidentiality designation, all parties will

16

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

17

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

18

challenge.

19

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

20

7.1

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

21

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

22

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

23

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

24

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

25

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

26

DISPOSITION).

27
28

Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
7

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1
2

authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

3

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

4

Receiving Party may disclose any information or item designated

5

“CONFIDENTIAL” only to:

6

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

7

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

8

to disclose the information for this Action;

9

(b) the officers, directors, and employees (including House Counsel) of the

10

Receiving Party to whom disclosure is reasonably necessary for this Action;

11

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

12

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

13

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

14

(d) the Court and its personnel;

15

(e) court reporters and their staff;

16

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

17

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

18

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

19
20
21

(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the

22

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

23

requests that the witness sign the form attached as Exhibit A hereto; and (2) they

24

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

25

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

26

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

27

deposition testimony or exhibits to depositions that reveal Protected Material may

28

be separately bound by the court reporter and may not be disclosed to anyone
8

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1
2
3
4
5
6

except as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

7

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

8

“CONFIDENTIAL,” that Party must:

9
10

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

11

(b) promptly notify in writing the party who caused the subpoena or order to

12

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

13

or order is subject to this Protective Order. Such notification will include a copy of

14

this Stipulated Protective Order; and

15
16
17

(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

18

the subpoena or court order will not produce any information designated in this

19

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

20

subpoena or order issued, unless the Party has obtained the Designating Party’s

21

permission. The Designating Party will bear the burden and expense of seeking

22

protection in that court of its confidential material and nothing in these provisions

23

should be construed as authorizing or encouraging a Receiving Party in this Action

24

to disobey a lawful directive from another court.

25
26
27
28

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a NonParty in this Action and designated as “CONFIDENTIAL.” Such information
9

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

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

2

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

3

construed as prohibiting a Non-Party from seeking additional protections.

4

(b) In the event that a Party is required, by a valid discovery request, to

5

produce a Non-Party’s confidential information in its possession, and the Party is

6

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

7

confidential information, then the Party will:

8
9
10
11

(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement
with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective

12

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

13

description of the information requested; and

14
15
16

(3) make the information requested available for inspection by the NonParty, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 14

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

25

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

26

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

27

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

28

writing the Designating Party of the unauthorized disclosures, (b) use its best
10

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

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

2

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

3

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

4

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

5
6
7

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

8

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

9

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

10

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

11

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

12

production without prior privilege review. Pursuant to Federal Rule of Evidence

13

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

14

of a communication or information covered by the attorney-client privilege or work

15

product protection, the parties may incorporate their agreement in the stipulated

16

protective order submitted to the court.

17

12.

18

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

19
20

MISCELLANEOUS

person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

21

Protective Order no Party waives any right it otherwise would have to object to

22

disclosing or producing any information or item on any ground not addressed in

23

this Stipulated Protective Order. Similarly, no Party waives any right to object on

24

any ground to use in evidence of any of the material covered by this Protective

25

Order.

26

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

27

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

28

may only be filed under seal pursuant to a court order authorizing the sealing of the
11

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

specific Protected Material at issue. If a Party's request to file Protected Material

2

under seal is denied by the court, then the Receiving Party may file the information

3

in the public record unless otherwise instructed by the court.

4

13.

FINAL DISPOSITION

5

After the final disposition of this Action, as defined in paragraph 4, within 60

6

days of a written request by the Designating Party, each Receiving Party must

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

Order as set forth in Section 4 (DURATION).

23

\\

24

\\

25

\\

26

\\

27

\\

28

\\
12

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

14.

Any willful violation of this Order may be punished by civil or

2

criminal contempt proceedings, financial or evidentiary sanctions, reference to

3

disciplinary authorities, or other appropriate action at the discretion of the Court.

4
5

FOR GOOD CAUSE SHOWN BY THE PARTIES’ STIPULATION, IT IS SO

6

ORDERED.

7
8
9
10
11

DATED: April 26, 2021

__________________________________
HON. PEDRO V. CASTILLO
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC

1

EXHIBIT A

2

AGREEMENT TO BE BOUND

3

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

4

_________________ [print or type full address], declare under penalty of perjury

5

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

6

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

7

_________ in the case of Hurford Global LLC v. ROM3 California, LLC et al.

8

2:20-cv-10203-JVS-PVC. I agree to comply with and to be bound by all the terms

9

of this Protective Order, and I understand and acknowledge that failure to so

10

comply could expose me to sanctions and punishment for contempt. I solemnly

11

promise that I will not disclose in any manner any information or item that is

12

subject to this Protective Order to any person or entity except in strict compliance

13

with this Order.

14

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

15

for the Central District of California for the purpose of enforcing this Order, even if

16

such enforcement proceedings occur after termination of this action.

17
18

Date: ___________________________

19

City and State where sworn and signed: _________________________________

20
21
22
23
24

Printed name: ____________________
[printed name]
Signature: _______________________
[signature]

25
26
27
28
14

STIPULATED PROTECTIVE ORDER – CASE NO. 2:20-CV-10203-JVS-PVC