Michael Kelley v. Penske Media Corporation et al

Filing 32

STIPULATED PROTECTIVE ORDER by Magistrate Judge Autumn D. Spaeth granting Stipulation for Protective Order 28 . (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL KELLEY
Plaintiff(s),

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v.

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Case No. 2:23-cv-01718-JAK-ADS

STIPULATED PROTECTIVE ORDER

PENSKE MEDIA CORPORATION, et
al.,

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Defendant(s).

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I.

PURPOSES AND LIMITATIONS

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A.

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proprietary, or private information for which special protection from public

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

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

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Court to enter the following Stipulated Protective Order. The parties

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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

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

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

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are entitled to confidential treatment under the applicable legal principles. The

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parties further acknowledge, as set forth in Section XIII(C), below, that this

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Stipulated Protective Order does not entitle them to file confidential information

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

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

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Court to file material under seal.

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II.

GOOD CAUSE STATEMENT
A.

This action is likely to involve customer and pricing lists and other

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valuable and competitively sensitive commercial, financial, and/or proprietary

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information for which special protection from public disclosure and from use for

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any purpose other than prosecution of this action is warranted. Such

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confidential and proprietary materials and information consist of, among other

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things, confidential business or financial information and license terms,

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information regarding confidential business practices and pricing, or other

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sensitive and confidential commercial information (including information

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implicating privacy rights of third parties), information otherwise generally

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unavailable to the public or to the parties’ business competitors, or which may

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be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law. Accordingly, to expedite

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the flow of information, to facilitate the prompt resolution of disputes over

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confidentiality of discovery materials, to adequately protect information the

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

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reasonable necessary uses of such material in preparation for and in the conduct
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of trial, to address their handling at the end of the litigation, and serve the ends

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of justice, a protective order for such information is justified in this matter. It is

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the intent of the parties that information will not be designated as confidential

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for tactical reasons and that nothing be so designated without a good faith belief

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that it has been maintained in a confidential, non-public manner, and there is

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good cause why it should not be part of the public record of this case.

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III.

DEFINITIONS

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A.

Action: This pending federal law suit.

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B.

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

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of 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

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

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the Good Cause Statement.

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D.

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Items: extremely sensitive “CONFIDENTIAL” Information or Items, the

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disclosure of which to another Party or Non-Party would create a substantial risk

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of serious harm that could not be avoided by less restrictive means.

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E.

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support staff).

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F.

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY.”

“CONFIDENTIAL” Information or Items: Information (regardless of how

“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” Information or

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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G.

Disclosure or Discovery Material: All items or information, regardless of

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

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(including, among other things, testimony, transcripts, and tangible things), that

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are produced or generated in disclosures or responses to discovery in this

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matter.

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H.

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

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serve as an expert witness or as a consultant in this Action.

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I.

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

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

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

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K.

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

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

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

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L.

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

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their support staffs).

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M.

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Discovery Material in this Action.

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N.

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

Non-Party: Any natural person, partnership, corporation, association, or

Outside Counsel of Record: Attorneys who are not employees of a party

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

Producing Party: A Party or Non-Party that produces Disclosure or

Professional Vendors: Persons or entities that provide litigation support

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

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medium) and their employees and subcontractors.

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O.

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY.”

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P.

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from a Producing Party.

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IV.

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Protected Material: Any Disclosure or Discovery Material that is

Receiving Party: A Party that receives Disclosure or Discovery Material

SCOPE
A.

The protections conferred by this Stipulation and Order cover not only

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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.

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V.

Any use of Protected Material at trial shall be governed by the orders of

DURATION

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A.

Even after final disposition of this litigation, the confidentiality

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obligations imposed by this Order shall remain in effect until a Designating

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Party agrees otherwise in writing or a court order otherwise directs. Final

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disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this Action, with or without prejudice; and (2) final judgment herein

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after the completion and exhaustion of all appeals, rehearings, remands, trials,

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or reviews of this Action, including the time limits for filing any motions or

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applications for extension of time pursuant to applicable law.
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VI.

DESIGNATING PROTECTED MATERIAL
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

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to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of

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material, documents, items, or oral or written communications that

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

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communications for which protection is not warranted are not swept

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unjustifiably within the 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

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made 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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items 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

Manner and Timing of Designations

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

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B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be

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clearly so designated before the material is disclosed or 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

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electronic documents, but excluding transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix

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at a minimum, the legend “CONFIDENTIAL” (hereinafter

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“CONFIDENTIAL legend”) or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” (hereinafter “HIGHLY

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CONFIDENTIAL legend”), to each page that contains protected

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

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qualifies for protection, the Producing Party also must clearly

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

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markings in the margins).

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b.

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available for inspection need not designate them for protection

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until after the inspecting Party has indicated which documents it

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would like copied and produced. During the inspection and before

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the designation, all of the material made available for inspection

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shall be deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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-- ATTORNEYS’ EYES ONLY.” After the inspecting Party has

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identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before

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producing the specified documents, the Producing Party must affix

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the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

A Party or Non-Party that makes original documents

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ATTORNEYS’ EYES ONLY” legend to each page that contains

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Protected Material. If only a portion or portions of the material on

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a page qualifies for protection, the Producing Party also must

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

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appropriate markings in the margins).

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c.

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Party identify the Disclosure or Discovery Material on the record,

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before the close of the deposition all protected testimony. When it

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is impractical to identify separately each portion of testimony that

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is entitled to protection and it appears that substantial portions of

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the testimony may qualify for protection, the Designating Party

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may invoke on the record (before the deposition, hearing, or other

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proceeding is concluded) a right to have up to 21 days to identify

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the specific portions of the testimony as to which protection is

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sought and to specify the level of protection being asserted. Only

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those portions of the testimony that are appropriately designated

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for protection within the 21 days shall be covered by the provisions

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of this Stipulated Protective Order. Alternatively, a Designating

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Party may specify, at the deposition or up to 21 days afterwards if

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that period is properly invoked, that the entire transcript shall be

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treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” Any transcript that is prepared

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before the expiration of a 21-day period for designation shall be

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treated during that period as if it had been designated “HIGHLY

For testimony given in depositions, that the Designating

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety

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unless otherwise agreed. After the expiration of that period, the

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transcript shall be treated only as actually designated.

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d.

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

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prominent place on the exterior of the container or containers in

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which the information is stored the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” If only

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a portion or portions of the information warrants protection, the

For information produced in form other than document and

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Producing Party, to the extent practicable, shall identify the

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protected portion(s).
C.

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Inadvertent Failure to Designate

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information or items does not, standing alone, waive the Designating

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

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

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

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the provisions of this Order.

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VII.

If timely corrected, an inadvertent failure to designate qualified

CHALLENGING CONFIDENTIALITY DESIGNATIONS
A.

Timing of Challenges

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1.

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

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Order.

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B.

Any party or Non-Party may challenge a designation of

Meet and Confer
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The Challenging Party shall initiate the dispute resolution process

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under Local Rule 37.1 et seq.

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C.

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

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

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

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

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

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

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

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

Basic Principles

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1.

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

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

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Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the

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Action has been terminated, a Receiving Party must comply with the

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provisions of Section 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

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limited to the persons authorized under this Order.

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B.

A Receiving Party may use Protected Material that is disclosed or

Protected Material must be stored and maintained by a Receiving

Disclosure of “CONFIDENTIAL” Information or Items

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Unless otherwise ordered by the Court or permitted in writing by

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

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item 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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b.

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Counsel) of the Receiving Party to whom disclosure is reasonably

The officers, directors, and employees (including House

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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

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for this Action and who have signed the “Acknowledgment and

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Agreement to be Bound” attached as Exhibit A hereto;

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g.

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information or a custodian or other person who otherwise

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possessed or knew the information;

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

The author or recipient of a document containing the

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h.

During their depositions, witnesses, and attorneys for

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witnesses, in the Action to whom disclosure is reasonably

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necessary provided: (i) the deposing party requests that the

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witness sign the “Acknowledgment and Agreement to Be Bound;”

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and (ii) they will not be permitted to keep any confidential

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information unless they sign the “Acknowledgment and Agreement

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to Be Bound,” unless otherwise agreed by the Designating Party or

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ordered by the Court. Pages of transcribed deposition testimony or

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exhibits to depositions that reveal Protected Material may be

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

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anyone except as permitted under this Stipulated Protective Order;

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and

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personnel, mutually agreed upon by any of the parties engaged in

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settlement discussions.

Any mediator or settlement officer, and their supporting

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2.

Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or

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permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “HIGHLY CONFIDENTIAL”

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only to:

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a.

the Receiving Party’s Outside Counsel of Record, as well as

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employees of said Outside Counsel of Record to whom it is

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reasonably necessary to disclose the information for this Action;

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b.

the Receiving Party’s House Counsel, to whom disclosure is

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reasonably necessary in 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.

private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the

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

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f.

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Professional Vendors to whom disclosure is reasonably necessary

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for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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g.

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information or a custodian or other person who otherwise

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possessed or knew the information; and

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h.

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the Designating Party. Pages of transcribed deposition testimony

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or exhibits to depositions that reveal Protected Material may be

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

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anyone except as permitted under this Stipulated Protective Order;

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and

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

professional jury or trial consultants, mock jurors, and

the author or recipient of a document containing the

During their deposition(s), the Rule 30(b)(6) witness(es) for

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i.

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personnel, mutually agreed upon by any of the parties engaged in

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settlement discussions.

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IX.

any mediator or settlement officer, and their supporting

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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A.

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY,” that Party must:

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

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

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covered by the subpoena or order is subject to this Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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3.

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pursued by the Designating Party whose Protected Material may be

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affected.

Promptly notify in writing the party who caused the subpoena or

Cooperate with respect to all reasonable procedures sought to be

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B.

If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated

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in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” before a determination by the Court from which the

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

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permission. The Designating Party shall bear the burden and expense of seeking
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protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party

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in this Action to disobey a lawful directive from another court.

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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” or “HIGHLY

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CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” Such information produced by

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

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

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as prohibiting a Non-Party from seeking additional protections.

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B.

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

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

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confidential information, then the Party shall:

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

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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

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confidentiality agreement with a Non-Party;

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2.

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

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reasonably specific description of the information requested; and

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3.

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Non-Party, if requested.

Promptly provide the Non-Party with a copy of the Stipulated

Make the information requested available for inspection by the

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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

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

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Receiving Party shall not produce any information in its possession or control

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that is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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XI.

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

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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A.

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disclosed Protected Material to any person or in any circumstance not

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authorized under this Stipulated Protective Order, the Receiving Party must

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immediately (1) notify in writing the Designating Party of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) request such person

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or persons to execute the “Acknowledgment and Agreement to be Bound” that is

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attached hereto as Exhibit A.

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

XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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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

When a Producing Party gives notice to Receiving Parties that certain

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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. Pursuant to Federal Rule of Evidence

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

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their

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agreement in the Stipulated Protective Order submitted to the Court.

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XIII. MISCELLANEOUS
A.

Right to Further Relief

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1.

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modification by the Court in the future.

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B.

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

Right to Assert Other Objections

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1.

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any 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 Stipulated

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

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

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Order.

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C.

By stipulating to the entry of this Protective Order, no Party waives

Filing Protected Material

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1.

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

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

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under seal pursuant to a court order authorizing the sealing of the specific

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

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

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information in the public record unless otherwise instructed by the Court.

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XIV. FINAL DISPOSITION

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A.

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

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

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

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

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

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capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to

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the Producing Party (and, if not the same person or entity, to the Designating

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Party) by the 60 day deadline that (1) identifies (by category, where appropriate)

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all the Protected Material that was returned or destroyed and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries

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or any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of

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all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports,

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

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

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

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in Section V.

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B.

Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: February 6, 2024

/s/ Benjamin F. Tookey
Stephen M. Doniger
[e-mail]
Benjamin F. Tookey
[e-mail]
DONIGER / BURROUGHS APC
603 Rose Avenue
Venice, California 90291
Telephone: [phone]
Attorneys for Plaintiff

Dated: February 6, 2024

/s/ Kevin Vick
Kevin Vick
[e-mail]
JASSY VICK CAROLAN LLP
355 S. Grand Ave, Suite 2450
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]
Attorney for Defendants

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated:

02/07/2024

/s/ Autumn D. Spaeth
HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

[print or type full name], of

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

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

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by the United States District Court for the Central District of California on [DATE] in

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the case of Michael Kelley v. Penske Media Corporation, et al., Case No. 2:23-cv-

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01718-JAK-ADS. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so

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comply could expose me to sanctions and punishment in the nature of contempt. I

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

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

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compliance with the provisions of this Order.

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

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint

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type full name] of

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

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

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Date:

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City and State where sworn and signed:

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Printed Name:

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Signature:

[print or
[print or type full address and

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