August Image, LLC v. Line Financial, PBC et al

Filing 34

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 33 . (see document for details) (hr)

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1 6 Stephen M. Doniger (SBN 179314) Benjamin F. Tookey (SBN 330508) DONIGER / BURROUGHS 603 Rose Avenue Venice, California 90291 Telephone: (310) 590-1820 7 Attorneys for Plaintiff 2 3 4 5 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 August Image, LLC, 12 Plaintiff, 13 Case No. 2:23-cv-05492-WLH (ASx) v. 14 PROTECTIVE ORDER Line Financial PBC; et al., 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth 1 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to 2 file confidential information under seal; Civil Local Rule 79-5 sets forth the 3 procedures that must be followed and the standards that will be applied when a party 4 seeks permission from the court to file material under seal. 5 B. GOOD CAUSE STATEMENT 6 This action is likely to involve customer and pricing lists and other valuable 7 commercial, financial, technical and/or proprietary information for which special 8 protection from public disclosure and from use for any purpose other than 9 prosecution of this action is warranted. Such confidential and proprietary 10 materials and information consist of, among other things, confidential business or 11 financial information, information regarding confidential business practices, or 12 other confidential commercial information (including information implicating 13 privacy rights of third parties), information otherwise generally unavailable to the 14 public, or which may be privileged or otherwise protected from disclosure under 15 state or federal statutes, court rules, case decisions, or common law. Accordingly, 16 to expedite the flow of information, to facilitate the prompt resolution of disputes 17 over confidentiality of discovery materials, to adequately protect information the 18 parties are entitled to keep confidential, to ensure that the parties are permitted 19 reasonable necessary uses of such material in preparation for and in the conduct of 20 trial, to address their handling at the end of the litigation, and serve the ends of 21 justice, a protective order for such information is justified in this matter. It is the 22 intent of the parties that information will not be designated as confidential for 23 tactical reasons and that nothing be so designated without a good faith belief that it 24 has been maintained in a confidential, non-public manner, and there is good cause 25 why it should not be part of the public record of this case. 26 2. DEFINITIONS 27 2.1 Action: this pending federal lawsuit. 28 2.2 Challenging Party: a Party or Non-Party that challenges the 2 1 2 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 3 how it is generated, stored or maintained) or tangible things that qualify for 4 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 5 the Good Cause Statement. 6 7 8 9 10 11 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 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.6 Disclosure or Discovery Material: all items or information, regardless 12 of the medium or manner in which it is generated, stored, or maintained (including, 13 among other things, testimony, transcripts, and tangible things) that are produced or 14 generated in disclosures or responses to discovery in this matter. 15 2.7 Expert: a person with specialized knowledge or experience in a matter 16 pertinent to the litigation who has been retained by a Party or its counsel to serve as 17 an expert witness or as a consultant in this Action. 18 2.8 House Counsel: attorneys who are employees of a party to this Action. 19 House Counsel does not include Outside Counsel of Record or any other outside 20 counsel. 21 22 23 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 24 party to this Action but are retained to represent or advise a party to this Action and 25 have appeared in this Action on behalf of that party or are affiliated with a law firm 26 that has appeared on behalf of that party, and includes support staff. 27 28 2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their 3 1 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 2 3 Discovery Material in this Action. 4 2.13 Professional Vendors: persons or entities that provide litigation 5 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 6 demonstrations, and organizing, storing, or retrieving data in any form or medium) 7 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 8 9 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery 10 11 Material from a Producing Party. 12 3. SCOPE 13 The protections conferred by this Stipulation and Order cover not only 14 Protected Material (as defined above), but also (1) any information copied or 15 extracted from Protected Material; (2) all copies, excerpts, summaries, or 16 compilations of Protected Material; and (3) any testimony, conversations, or 17 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 18 19 trial judge. This Order does not govern the use of Protected Material at trial. 20 4. 21 DURATION Once a case proceeds to trial, information that was designated as 22 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 23 as an exhibit at trial becomes public and will be presumptively available to all 24 members of the public, including the press, unless compelling reasons supported by 25 specific factual findings to proceed otherwise are made to the trial judge in advance 26 of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 27 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents 28 produced in discovery from “compelling reasons” standard when merits-related 4 1 documents are part of court record). Accordingly, the terms of this protective order 2 do not extend beyond the commencement of the trial. 3 5. 4 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 5 Each Party or Non-Party that designates information or items for protection under 6 this Order must take care to limit any such designation to specific material that 7 qualifies under the appropriate standards. The Designating Party must designate for 8 protection only those parts of material, documents, items or oral or written 9 communications that qualify so that other portions of the material, documents, 10 items, or communications for which protection is not warranted are not swept 11 unjustifiably within the ambit of this Order. 12 Mass, indiscriminate or routinized designations are prohibited. Designations 13 that are shown to be clearly unjustified or that have been made for an improper 14 purpose (e.g., to unnecessarily encumber the case development process or to impose 15 unnecessary expenses and burdens on other parties) may expose the Designating 16 Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it 18 designated for protection do not qualify for protection, that Designating Party must 19 promptly notify all other Parties that it is withdrawing the inapplicable designation. 20 5.2 Manner and Timing of Designations. Except as otherwise provided in 21 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 22 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 23 under this Order must be clearly so designated before the material is disclosed or 24 produced. 25 26 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 27 documents, but excluding transcripts of depositions or other pretrial or trial 28 proceedings), that the Producing Party affix at a minimum, the legend 5 1 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 2 contains protected material. If only a portion of the material on a page qualifies for 3 protection, the Producing Party also must clearly identify the protected portion(s) 4 (e.g., by making appropriate markings in the margins). 5 A Party or Non-Party that makes original documents available for inspection 6 need not designate them for protection until after the inspecting Party has indicated 7 which documents it would like copied and produced. During the inspection and 8 before the designation, all of the material made available for inspection shall be 9 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 10 documents it wants copied and produced, the Producing Party must determine which 11 documents, or portions thereof, qualify for protection under this Order. Then, 12 before producing the specified documents, the Producing Party must affix the 13 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 14 portion of the material on a page qualifies for protection, the Producing Party also 15 must clearly identify the protected portion(s) (e.g., by making appropriate markings 16 in the margins). (b) for testimony given in depositions that the Designating Party identifies 17 18 the Disclosure or Discovery Material on the record, before the close of the 19 deposition all protected testimony. (c) for information produced in some form other than documentary and 20 21 for any other tangible items, that the Producing Party affix in a prominent place on 22 the exterior of the container or containers in which the information is stored the 23 legend “CONFIDENTIAL.” If only a portion or portions of the information 24 warrants protection, the Producing Party, to the extent practicable, shall identify the 25 protected 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 material. 6 1 Upon timely correction of a designation, the Receiving Party must make reasonable 2 efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 5 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. 6.2 8 9 10 Meet and Confer. The Challenging Party shall initiate the informal dispute resolution process set forth in the Court's Procedures and Schedules. See 6.3 11 The burden of persuasion in any such challenge proceeding shall 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 shall 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. 20 ACCESS TO AND USE OF PROTECTED MATERIAL 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 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 7 well as employees of said Outside Counsel of Record to whom it is reasonably 8 necessary to disclose the information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of 10 the 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 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 21 (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 except 8 1 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 2 3 mutually agreed upon by any of the parties engaged in settlement discussions. 4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 5 IN OTHER LITIGATION 6 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: (a) promptly notify in writing the Designating Party. Such notification 9 10 shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 11 12 to issue in the other litigation that some or all of the material covered by the 13 subpoena or order is subject to this Protective Order. Such notification shall include 14 a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 15 16 pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 17 18 the subpoena or court order shall 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 shall 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 9. 26 27 28 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 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 9 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 shall: (1) promptly notify in writing the Requesting Party and the Non-Party 8 9 10 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 11 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and (3) make the information requested available for inspection by the 14 15 Non-Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 17 14 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 shall 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 shall bear the burden and 23 expense of seeking protection in this court of its Protected Material. 24 10. 25 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 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 efforts 10 1 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 2 persons to whom unauthorized disclosures were made of all the terms of this Order, 3 and (d) request such person or persons to execute the “Acknowledgment and 4 Agreement to Be Bound” that is attached hereto as Exhibit A. 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 6 PROTECTED MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain 8 inadvertently produced material is subject to a claim of privilege or other protection, 9 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 10 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 11 procedure may be established in an e-discovery order that provides for production 12 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and 13 (e), insofar as the parties reach an agreement on the effect of disclosure of a 14 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 19 20 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 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 this 23 Stipulated Protective Order. Similarly, no Party waives any right to object on any 24 ground to use in evidence of any of the material covered by this Protective Order. 25 12.3 Filing Protected Material. A Party that seeks to file under seal any 26 Protected Material must comply with Local Civil Rule 79-5. Protected Material 27 may only be filed under seal pursuant to a court order authorizing the sealing of the 28 specific Protected Material at issue. If a Party’s request to file Protected Material 11 1 under seal is denied by the court, then the Receiving Party may file the information 2 in the public record unless otherwise instructed by the court. 3 13. FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 4 5 days of a written request by the Designating Party, each Receiving Party must return 6 all Protected Material to the Producing Party or destroy such material. As used in 7 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 8 summaries, and any other format reproducing or capturing any of the Protected 9 Material. Whether the Protected Material is returned or destroyed, the Receiving 10 Party must submit a written certification to the Producing Party (and, if not the same 11 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 12 (by category, where appropriate) all the Protected Material that was returned or 13 destroyed and (2) affirms that the Receiving Party has not retained any copies, 14 abstracts, compilations, summaries or any other format reproducing or capturing any 15 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 16 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 17 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 18 reports, attorney work product, and consultant and expert work product, even if such 19 materials contain Protected Material. Any such archival copies that contain or 20 constitute Protected Material remain subject to this Protective Order as set forth in 21 Section 4 (DURATION). 22 14. 23 Any violation of this Order may be punished by appropriate measures including, 24 without limitation, contempt proceedings and/or monetary sanctions. VIOLATION 25 26 27 28 12 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 DATED: March 27, 2024 4 5 6 /s/ Benjamin F. Tookey Attorneys for Plaintiff 7 8 DATED: March 27, 2024 9 10 11 /s/ Morgan E. Pietz Attorneys for Defendant 12 13 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 14 15 DATED:________________________ March 28, 2024 16 17 18 / s / Sagar _____________________________________ HON. ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 13 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 AUGUST IMAGE, LLC v. LINE FINANCIAL, PBC, et al., 9 Case No. 2:23-cv-05492-WLH(ASx). I agree to comply with and to be bound by all 10 the terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any 13 information or item that is subject to this Stipulated Protective Order to any person 14 or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 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 19 _______________________________________ [print or type full address and 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 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________ 28 14

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