Experience Hendrix, L.L.C. et al v. Andrew Pitsicalis

Filing 22

STIPULATED PROTECTIVE ORDER by Magistrate Judge Rozella A. Oliver re Stipulation for Protective Order 21 (dml)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10

Experience Hendrix, LLC et al.,

11
12

Case No. 2:21-cv-03362-PSG- RAO

Plaintiff,
v.

13
14

STIPULATED PROTECTIVE
ORDER1

Andrew Pitsicalis,
Defendant.

15
16
17
18
19
20
21
22
23
24
25
26

1.

A. PURPOSES AND LIMITATIONS
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 litigation and
collecting the $2 million judgment entered against Andrew Pitsicalis by the
Southern District of New York on October 21, 2019 (the “Judgment”) may be
warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
Order does not confer blanket protections on all disclosures or responses to

27
28

This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Rozella A. Oliver’s Procedures.
1

1

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

2

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

3

under the applicable legal principles.

4
5

B. GOOD CAUSE STATEMENT

6

This action is likely to involve personal financial information for which

7

special protection from public disclosure and from use for any purpose other than

8

prosecution of this action and collection of the Judgment is warranted. Such

9

confidential financial information consist of, among other things, bank records, loan

10

records and other personal financial information , which may be privileged or

11

otherwise protected from disclosure under state or federal statutes, court rules, case

12

decisions, or common law. Accordingly, to expedite the flow of information, to

13

facilitate the prompt resolution of disputes over confidentiality of discovery

14

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

15

confidential, to ensure that the parties are permitted reasonable necessary uses of

16

such material in connection with the collection of the Judgment and all proceedings

17

ancillary to such judgment collection efforts, to address their handling at the end of

18

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

19

justified in this matter. It is the intent of the parties that information will not be

20

designated as confidential for tactical reasons and that nothing be so designated

21

without a good faith belief that it has been maintained in a confidential, non-public

22

manner, and there is good cause why it should not be part of the public record of this

23

case.

24
25

C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL

26

The parties further acknowledge, as set forth in Section 12.3, below, that this

27

Stipulated Protective Order does not entitle them to file confidential information

28

under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
2

1

and the standards that will be applied when a party seeks permission from the court

2

to file material under seal.

3

There is a strong presumption that the public has a right of access to judicial

4

proceedings and records in civil cases. In connection with non-dispositive motions,

5

good cause must be shown to support a filing under seal. See Kamakana v. City and

6

County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors

7

Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,

8

Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

9

require good cause showing), and a specific showing of good cause or compelling

10

reasons with proper evidentiary support and legal justification, must be made with

11

respect to Protected Material that a party seeks to file under seal. The parties’ mere

12

designation of Disclosure or Discovery Material as CONFIDENTIAL does not—

13

without the submission of competent evidence by declaration, establishing that the

14

material sought to be filed under seal qualifies as confidential, privileged, or

15

otherwise protectable—constitute good cause.

16

Further, if a party requests sealing related to a any court filing, then

17

compelling reasons, not only good cause, for the sealing must be shown, and the

18

relief sought shall be narrowly tailored to serve the specific interest to be protected.

19

See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For

20

each item or type of information, document, or thing sought to be filed or introduced

21

under seal, the party seeking protection must articulate compelling reasons,

22

supported by specific facts and legal justification, for the requested sealing order.

23

Again, competent evidence supporting the application to file documents under seal

24

must be provided by declaration.

25

Any document that is not confidential, privileged, or otherwise protectable in

26

its entirety will not be filed under seal if the confidential portions can be redacted.

27

If documents can be redacted, then a redacted version for public viewing, omitting

28

only the confidential, privileged, or otherwise protectable portions of the document
3

1

shall be filed. Any application that seeks to file documents under seal in their

2

entirety should include an explanation of why redaction is not feasible.

3
4
5
6
7
8
9

2.

DEFINITIONS
2.1

Action: Experience Hendrix, LLC et al. v. Andrew Pitsicalis, 2:21-cv-

03362-PSG-ROA
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of

10

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

11

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

12

the Good Cause Statement.

13
14
15

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

16

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

17

“CONFIDENTIAL.”

18

2.6

Disclosure or Discovery Material: all items or information, regardless

19

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

20

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

21

generated in disclosures or responses to discovery in this matter.

22

2.7

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

23

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

24

an expert witness or as a consultant in this Action.

25

2.8

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

26

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

27

counsel.

28

2.9

Non-Party: any natural person, partnership, corporation, association or
4

1

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

2
3

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

4

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

5

that has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,

6
7

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

8

support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

9
10

Discovery Material in this Action.

11

2.13 Professional Vendors: persons or entities that provide litigation

12

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

13

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

14

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

15
16

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

17
18

Material from a Producing Party.

19
20

3.

SCOPE

21

The protections conferred by this Stipulation and Order cover not only

22

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

23

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

24

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

25

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

26
27

Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.

28

5

1

4.

DURATION
Once a case proceeds to trial, information that was designated as

2
3

CONFIDENTIAL or maintained pursuant to this protective order used or introduced

4

as an exhibit at trial becomes public and will be presumptively available to all

5

members of the public, including the press, unless compelling reasons supported by

6

specific factual findings to proceed otherwise are made to the trial judge in advance

7

of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

8

showing for sealing documents produced in discovery from “compelling reasons”

9

standard when merits-related documents are part of court record). Accordingly, the

10

terms of this protective order do not extend beyond the commencement of the trial.

11
12
13

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

14

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

15

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

16

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

17

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

18

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

19

or communications for which protection is not warranted are not swept unjustifiably

20

within the ambit of this Order.

21

Mass, indiscriminate or routinized designations are prohibited. Designations

22

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

23

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

24

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

25

Party to sanctions.

26

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

27

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

28

promptly notify all other Parties that it is withdrawing the inapplicable designation.
6

1

5.2

Manner and Timing of Designations. Except as otherwise provided in

2

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

3

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

4

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

5

produced.

6

Designation in conformity with this Order requires:

7

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

8

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

9

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

10

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

11

contains protected material. If only a portion of the material on a page qualifies for

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

portion of the material on a page qualifies for protection, the Producing Party also

24

must clearly identify the protected portion(s) (e.g., by making appropriate markings

25

in the margins).

26

(b) for testimony given in depositions that the Designating Party identifies

27

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

28

deposition all protected testimony.
7

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

1
2

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

3

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

4

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

5

warrants protection, the Producing Party, to the extent practicable, shall identify the

6

protected portion(s).
5.3

7

Inadvertent Failures to Designate. If timely corrected, an inadvertent

8

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

9

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

10

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

11

efforts to assure that the material is treated in accordance with the provisions of this

12

Order.

13
14
15

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

16

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

17

Scheduling Order.

18
19
20

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

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

21

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

22

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

23

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

24

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

25

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

26

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

27

challenge.

28

8

1
2

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

3

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

4

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

5

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

6

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

7

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

8

DISPOSITION).

9

Protected Material must be stored and maintained by a Receiving Party at a

10

location and in a secure manner that ensures that access is limited to the persons

11

authorized under this Order.

12

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

13

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

14

Receiving Party may disclose any information or item designated

15

“CONFIDENTIAL” only to:

16

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

17

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

18

necessary to disclose the information for this Action;

19

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

20

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

21

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

22

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

23

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

24

(d) the court and its personnel;

25

(e) court reporters and their staff;

26

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

27

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

28

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
9

(g) the author or recipient of a document containing the information or a

1
2

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

3

(h) during their depositions, witnesses, and attorneys for witnesses, in the

4

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

5

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

6

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

7

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

8

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

9

deposition testimony or exhibits to depositions that reveal Protected Material may

10

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

11

as permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

12
13

mutually agreed upon by any of the parties engaged in settlement discussions.

14
15

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

16

IN OTHER LITIGATION

17

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

18

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

19

“CONFIDENTIAL,” that Party must:

20
21
22

(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 or order

23

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

24

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

25

a copy of this Stipulated Protective Order; and

26
27
28

(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
10

1

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

2

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

3

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

4

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

5

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

6

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

7

to disobey a lawful directive from another court.

8
9
10
11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

confidential information, then the Party shall:

20

(1) promptly notify in writing the Requesting Party and the Non-Party

21

that some or all of the information requested is subject to a confidentiality

22

agreement with a Non-Party;

23

(2) promptly provide the Non-Party with a copy of the Stipulated

24

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

25

specific description of the information requested; and

26
27
28

(3) 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 within
11

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8
9

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

10
11

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

12

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

13

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

14

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

15

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

16

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

17

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

18
19

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

20

PROTECTED MATERIAL

21

When a Producing Party gives notice to Receiving Parties that certain

22

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

23

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

24

Procedure 26(b)(5)(B). This provision is not intended to modify whatever

25

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

26

without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

27

(e), insofar as the parties reach an agreement on the effect of disclosure of a

28

communication or information covered by the attorney-client privilege or work
12

1

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

2

protective order submitted to the court.

3
4

12.

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

5
6

MISCELLANEOUS

person to seek its modification by the Court in the future.

7

12.2 Right to Assert Other Objections. By stipulating to the entry of this

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

in the public record unless otherwise instructed by the court.

18
19
20

13.

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

21

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

22

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

23

this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

24

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

25

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

26

Party must submit a written certification to the Producing Party (and, if not the same

27

person or entity, to the Designating Party) by the 60 day deadline that (1) identifies

28

(by category, where appropriate) all the Protected Material that was returned or
13

1

destroyed and (2) affirms that the Receiving Party has not retained any copies,

2

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

3

of the Protected Material. Notwithstanding this provision, Counsel are entitled to

4

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

5

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

6

reports, attorney work product, and consultant and expert work product, even if such

7

materials contain Protected Material. Any such archival copies that contain or

8

constitute Protected Material remain subject to this Protective Order as set forth in

9

Section 4 (DURATION).

10
11

14.

VIOLATION

12

Any violation of this Order may be punished by appropriate measures including,

13

without limitation, contempt proceedings and/or monetary sanctions.

14
15
16

IT IS SO STIPULATED,
DATED _11/15/2021

17
18
19
20
21
22
23
24
25

Attorneys for Plaintiff
DATED:

11/15/2021

_______________
Andrew Pitsicalis
FOR GOOD CAUSE SHOWN, IT IS SO
ORDERED. DATED: November 19, 2021

26
27
28

HON. ROZELLA A. OLIVER
United States Magistrate Judge
14

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

I,

_ [print or type full name], of

5

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

6

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

7

was issued by the United States District Court for the Central District of California

8

on [date] in the case of

9

number and initials assigned to it by the court]. I agree to comply with and to be

[insert formal name of the case and the

10

bound by all the terms of this Stipulated Protective Order and I understand and

11

acknowledge that failure to so comply could expose me to sanctions and punishment

12

in the nature of contempt. I solemnly promise that I will not disclose in any manner

13

any information or item that is subject to this Stipulated Protective Order to any

14

person 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 Court for the

16

Central District of California for enforcing the terms of this Stipulated Protective

17

Order, even if such enforcement proceedings occur after termination of this action.

18

I hereby appoint

[print or type full name] of
_ [print or type full address and

19
20

telephone number] as my California agent for service of process in connection with

21

this action or any proceedings related to enforcement of this Stipulated Protective

22

Order.

23

Date:

24

City and State where sworn and signed:

_

25
26

Printed name:

27
28

Signature:
15