Pacific Solution Marketing Inc v. Master Cutlery Inc

Filing 36

*NOTE: Changes Made By The Court* PROTECTIVE ORDER FOR CASES ASSIGNED TO JUDGE JOHN A. KRONSTADT by Magistrate Judge Paul L. Abrams. *See attached Order.* (es)

NOTE: CHANGES MADE BY THE COURT
1
2
3
4
5
6

BENJAMIN ASHUROV SBN 271716
[e-mail]
LYNN M. TERREBONNE SBN 248964
[e-mail]
KB ASH Law Group PC
7011 Koll Center Pkwy, Suite 160
Pleasanton, CA 94566
Telephone: [phone]
Facsimile: 415.952.9325
Attorneys for Plaintiff
PACIFIC SOLUTION MARKETING, INC.

7

6

0

8
1
E
T
I

P . C

6

CASE NO. 5:13-cv-01469-JAK-PLAx

5

12

PACIFIC SOLUTION MARKETING,
INC.,

13

9

Plaintiff,
v.

C

14

,
N

15

MASTER CUTLERY, INC.,

N
S

Judge: Hon. John A. Kronstadt
Magistrate: Hon Paul L. Abrams

18

Trial Date: April 21, 2015

19

1
0

20

7

K B

P

1

L

A

A

Defendant.

17

E

L
O

L

PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A.
KRONSTADT

16

T

O

T

E

R

A

P

K

4

Y
W

6

S

U

11

N
E
C

L A W G R O U P

CENTRAL DISTRICT OF CALIFORNIA

10

K

A S H

UNITED STATES DISTRICT COURT

9

21
22
23
24
25

1.

PURPOSE AND LIMITS OF THIS ORDER

Discovery in this action is likely to involve confidential, proprietary, or
private information requiring special protection from public disclosure and from
use for any purpose other than this litigation. Thus, the Court enters this Protective
Order. This Order does not confer blanket protections on all disclosures or

26
27

responses to discovery, and the protection it gives from public disclosure and use
extends only to the specific material entitled to confidential treatment under the

28

[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

applicable legal principles. This Order does not automatically authorize the filing

2

under seal of material designated under this Order. Instead, the parties must

3

comply with Local Rule 79-5.1 and this Court’s Order Re Pilot Program for Under

4

Seal Documents if they seek to file anything under seal. This Order does not

5

govern the use at trial of material designated under this Order.

6

2.

DESIGNATING PROTECTED MATERIAL

7

2.1

Over-Designation Prohibited. Any party or non-party who

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

designate specific material that qualifies under the appropriate standards. To the
communications that require protection shall be designated. Designations with a
higher confidentiality level when a lower level would suffice are prohibited. Mass,
indiscriminate, or routinized designations are prohibited. Unjustified designations
expose the designator to sanctions, including the Court’s striking all confidentiality
designations made by that designator. Designation under this Order is allowed only

17

if the designation is necessary to protect material that, if disclosed to persons not

18

authorized to view it, would cause competitive or other recognized harm. Material

19

may not be designated if it has been made public, or if designation is otherwise

20

unnecessary to protect a secrecy interest. If a designator learns that information or

21

items that it designated for protection do not qualify for protection at all or do not

22

qualify for the level of protection initially asserted, that designator must promptly

23

notify all parties that it is withdrawing the mistaken designation.

A

0

1

P

1

L

E

A

or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) must only

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,”

extent practicable, only those parts of documents, items, or oral or written

S

U

P . C

1

9

designates information or items for protection under this Order as

24

2.2

Manner and Timing of Designations. Designation under this

25

Order requires the designator to affix the applicable legend (“CONFIDENTIAL,”

26

“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY

27

CONFIDENTIAL – SOURCE CODE”) to each page that contains protected

28

material. For testimony given in deposition or other proceeding, the designator
-2[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

shall specify all protected testimony and the level of protection being asserted. It

2

may make that designation during the deposition or proceeding, or may invoke, on

3

the record or by written notice to all parties on or before the next business day, a

4

right to have up to 21 days from the deposition or proceeding to make its

5

designation.

6
7

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

inspecting party has identified which material it would like copied and produced.
During the inspection and before the designation, all material shall be treated as
HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting
party has identified the documents it wants copied and produced, the producing
under this Order.
2.2.2

Parties shall give advance notice if they expect a deposition or

other proceeding to include designated material so that the other parties can ensure
that only authorized individuals are present at those proceedings when such
material is disclosed or used. The use of a document as an exhibit at a deposition

17

shall not in any way affect its designation. Transcripts containing designated

18

material shall have a legend on the title page noting the presence of designated

19

material, and the title page shall be followed by a list of all pages (including line

20

numbers as appropriate) that have been designated, and the level of protection

21

being asserted. The designator shall inform the court reporter of these

22

requirements. Any transcript that is prepared before the expiration of the 21-day

23

period for designation shall be treated during that period as if it had been

24

designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless

25

otherwise agreed. After the expiration of the 21-day period, the transcript shall be

26

treated only as actually designated.

A

0

1

P

1

L

E

A

available for inspection need not designate them for protection until after the

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

A party or non-party that makes original documents or materials

party must designate the documents, or portions thereof, that qualify for protection

S

U

P . C

1

9

2.2.1

27
28

2.3

Inadvertent Failures to Designate. An inadvertent failure to

designate does not, standing alone, waive protection under this Order. Upon timely
-3[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

assertion or correction of a designation, all recipients must make reasonable efforts

2

to ensure that the material is treated according to this Order.

3

///

4

3.

5

All challenges to confidentiality designations shall proceed under Local Rule

6
7

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16
17

ACCESS TO DESIGNATED MATERIAL

4.1

Basic Principles. A receiving party may use designated material

only for this litigation. Designated material may be disclosed only to the categories
of persons and under the conditions described in this Order.
4.2

Disclosure of CONFIDENTIAL Material Without Further

designator, a receiving party may disclose any material designated
CONFIDENTIAL only to:
4.2.1

The receiving party’s outside counsel of record in this action

and employees of outside counsel of record to whom disclosure is reasonably
necessary;
4.2.2

The officers, directors, and employees of the receiving party to

whom disclosure is reasonably necessary, and who have signed the Agreement to

19

Be Bound (Exhibit A);

0

1

P

1

L

A

18

E

A

4.

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

20

7

K B

37-1 through Local Rule 37-4.

Approval. Unless otherwise ordered by the Court or permitted in writing by the

S

U

P . C

1

9

CHALLENGING CONFIDENTIALITY DESIGNATIONS

4.2.3

Experts retained by the receiving party’s outside counsel of

21

record to whom disclosure is reasonably necessary, and who have signed the

22

Agreement to Be Bound (Exhibit A);

23

4.2.4

The Court and its personnel;

24

4.2.5

Outside court reporters and their staff, professional jury or trial

25

consultants, and professional vendors to whom disclosure is reasonably necessary,

26

and who have signed the Agreement to Be Bound (Exhibit A);

27
28

4.2.6

During their depositions, witnesses in the action to whom

disclosure is reasonably necessary and who have signed the Agreement to Be
-4[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1
2
3
4

Bound (Exhibit A); and
4.2.7

The author or recipient of a document containing the material,

or a custodian or other person who otherwise possessed or knew the information.
4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY

5

EYES ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material

6

Without Further Approval. Unless permitted in writing by the designator, a

7

receiving party may disclose material designated HIGHLY CONFIDENTIAL –

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16
17

The receiving party’s outside counsel of record in this action

and employees of outside counsel of record to whom it is reasonably necessary to
4.3.2

The Court and its personnel;

4.3.3

Outside court reporters and their staff, professional jury or trial

consultants, and professional vendors to whom disclosure is reasonably necessary,
and who have signed the Agreement to Be Bound (Exhibit A); and
4.3.4

The author or recipient of a document containing the material,

or a custodian or other person who otherwise possessed or knew the information.
4.4

Procedures for Approving or Objecting to Disclosure of

19

HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

20

CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or Experts.

21

Unless agreed to in writing by the designator:

0

1

P

1

L

A

18

E

A

4.3.1

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

without further approval only to:

disclose the information;

S

U

P . C

1

9

ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE

22

4.4.1

A party seeking to disclose to in-house counsel any material

23

designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first

24

make a written request to the designator providing the full name of the in-house

25

counsel, the city and state of such counsel’s residence, and such counsel’s current

26

and reasonably foreseeable future primary job duties and responsibilities in

27

sufficient detail to determine present or potential involvement in any competitive

28

decision-making. In-house counsels are not authorized to receive material
-5[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

designated HIGHLY CONFIDENTIAL – SOURCE CODE.
4.4.2

2

A party seeking to disclose to an expert retained by outside

3

counsel of record any information or item that has been designated HIGHLY

4

CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

5

SOURCE CODE must first make a written request to the designator that (1)

6

identifies the general categories of HIGHLY CONFIDENTIAL – ATTORNEY

7

EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE information that

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

employer(s), (5) identifies each person or entity from whom the expert has received
connection with litigation) in the past five years, and (6) identifies (by name and
number of the case, filing date, and location of court) any litigation where the
expert has offered expert testimony, including by declaration, report, or testimony
at deposition or trial, in the past five years. If the expert believes any of this
information at (4) - (6) is subject to a confidentiality obligation to a third party,

17

then the expert should provide whatever information the expert believes can be

18

disclosed without violating any confidentiality agreements, and the party seeking to

19

disclose the information to the expert shall be available to meet and confer with the

20

designator regarding any such confidentiality obligations.

A

0

1

P

1

L

E

A

attaches a copy of the expert’s current resume, (4) identifies the expert’s current

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

name of the expert and the city and state of his or her primary residence, (3)

compensation or funding for work in his or her areas of expertise (including in

S

U

P . C

1

9

the receiving party seeks permission to disclose to the expert, (2) sets forth the full

21

4.4.3

A party that makes a request and provides the information

22

specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the

23

identified in-house counsel or expert unless, within seven days of delivering the

24

request, the party receives a written objection from the designator providing

25

detailed grounds for the objection.
4.4.4

26

All challenges to objections from the designator shall proceed

27

under Local Rule 37-1 through Local Rule 37-4.

28

///
-6[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

5.

SOURCE CODE

2

5.1

Designation of Source Code. If production of source code is

3

necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE

4

CODE if it is, or includes, confidential, proprietary, or trade secret source code.

5

5.2

Location and Supervision of Inspection. Any HIGHLY

6

CONFIDENTIAL – SOURCE CODE produced in discovery shall be made

7

available for inspection, in a format allowing it to be reasonably reviewed and

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

secured room, and the inspecting party shall not copy, remove, or otherwise
device. The designator may visually monitor the activities of the inspecting party’s
representatives during any source code review, but only to ensure that there is no
unauthorized recording, copying, or transmission of the source code.
5.3

Paper Copies of Source Code Excerpts. The inspecting party

may request paper copies of limited portions of source code that are reasonably

17

necessary for the preparation of court filings, pleadings, expert reports, other

18

papers, or for deposition or trial. The designator shall provide all such source code

19

in paper form, including Bates numbers and the label “HIGHLY CONFIDENTIAL

20

– SOURCE CODE.”

A

0

1

P

1

L

E

A

The source code shall be made available for inspection on a secured computer in a

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

office of the designating party’s counsel or another mutually agreeable location.

transfer any portion of the source code onto any recordable media or recordable

S

U

P . C

1

9

searched, during normal business hours or at other mutually agreeable times, at an

21

5.4

Access Record. The inspecting party shall maintain a record of

22

any individual who has inspected any portion of the source code in electronic or

23

paper form, and shall maintain all paper copies of any printed portions of the source

24

code in a secured, locked area. The inspecting party shall not convert any of the

25

information contained in the paper copies into any electronic format other than for

26

the preparation of a pleading, exhibit, expert report, discovery document,

27

deposition transcript, or other Court document. Any paper copies used during a

28
-7[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

deposition shall be retrieved at the end of each day and must not be left with a court

2

reporter or any other unauthorized individual.

3

6.

ORDERED PRODUCED IN OTHER LITIGATION

4
5

PROTECTED MATERIAL SUBPOENAED OR

6.1

Subpoenas and Court Orders. This Order in no way excuses

6

non-compliance with a lawful subpoena or court order. The purpose of the duties

7

described in this section is to alert the interested parties to the existence of this

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

Notification Requirement. If a party is served with a subpoena

or a court order issued in other litigation that compels disclosure of any information
CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or
HIGHLY CONFIDENTIAL – SOURCE CODE, that party must do the following.
6.2.1

Promptly notify the designator in writing. Such notification

shall include a copy of the subpoena or court order.
6.2.2

Promptly notify in writing the party who caused the subpoena or

17

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

18

subpoena or order is subject to this Order. Such notification shall include a copy of

19

this Order.

A

0

1

P

1

L

E

A

6.2

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

20

7

K B

interests in the court where the subpoena or order issued.

or items received by that party in this action and designated in this action as

S

U

P . C

1

9

Order and to give the designator an opportunity to protect its confidentiality

21
22

6.2.3

Cooperate with all reasonable procedures sought by the

designator whose material may be affected.
6.3

Wait For Resolution of Protective Order. If the designator

23

promptly seeks a protective order, the party served with the subpoena or court order

24

shall not produce any information designated in this action as CONFIDENTIAL,

25

HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

26

CONFIDENTIAL – SOURCE CODE before a determination by the court where

27

the subpoena or order issued, unless the party has obtained the designator’s

28
-8[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

permission. The designator shall bear the burden and expense of seeking protection

2

of its confidential material in that court.

3

7.

MATERIAL

4
5

UNAUTHORIZED DISCLOSURE OF DESIGNATED

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

6

designated material to any person or in any circumstance not authorized under this

7

Order, it must immediately (1) notify in writing the designator of the unauthorized

6

0

8

I

T

E

10
11
6
6

to have such person or persons execute the Agreement to Be Bound (Exhibit A).

5
9

4

Y
W
K

13
14

C

A

P
R

16

OTHERWISE PROTECTED MATERIAL
When a producing party gives notice that certain inadvertently produced
material is subject to a claim of privilege or other protection, the obligations of the
receiving parties are those set forth in Fed. R. Civ. P. 26(b)(5)(B). This provision
is not intended to modify whatever procedures may be established in an e-

17

discovery order that provides for production without prior privilege review

18

pursuant to Fed. R. Evid. 502(d) and (e).

19

9.

20

Without written permission from the designator or a Court order, a party may

FILING UNDER SEAL

A

0

1

P

1

L

E

A

INADVERTENT PRODUCTION OF PRIVILEGED OR

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

disclosures were made of all the terms of this Order, and (4) use reasonable efforts

12

7

K B

designated material, (3) inform the person or persons to whom unauthorized

8.

S

U

P . C

1

9

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

21

not file in the public record in this action any designated material. A party seeking

22

to file under seal any designated material must comply with Local Rule 79-1, and

23

must show good cause for the under seal filing. Filings may be made under seal

24

only pursuant to a court order authorizing the sealing of the specific material at

25

issue. The fact that a document has been designated under this Order is insufficient

26

to justify filing under seal. Instead, parties must explain the basis for

27

confidentiality of each document sought to be filed under seal. Because a party

28

other than the designator will often be seeking to file designated material,
-9[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

cooperation between the parties in preparing, and in reducing the number and

2

extent of, requests for under seal filing is essential. If a receiving party’s request to

3

file designated material under seal pursuant to Local Rule 79-5.1 is denied by the

4

Court, then the receiving party may file the material in the public record unless (1)

5

the designator seeks reconsideration within four days of the denial, or (2) as

6

otherwise instructed by the Court.

7

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

return all designated material to the designator or destroy such material, including
all copies, abstracts, compilations, summaries, and any other format reproducing or
capturing any designated material. The receiving party must submit a written
category, where appropriate) all the designated material that was returned or
destroyed, and (2) affirms that the receiving party has not retained any copies,
abstracts, compilations, summaries, or any other format reproducing or capturing
any of the designated material. This provision shall not prevent counsel from
retaining an archival copy of all pleadings, motion papers, trial, deposition, and

17

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

18

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

19

even if such materials contain designated material. Any such archival copies

20

remain subject to this Order.

A

0

1

P

1

L

E

A

Within 60 days after the final disposition of this action, each party shall

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

FINAL DISPOSITION

certification to the designator by the 60-day deadline that (1) identifies (by

S

U

P . C

1

9

10.

21
22

IT IS SO ORDERED.

23
24

Dated: July 18, 2014
Honorable Paul L. Abrams
United States Magistrate Judge

25
26
27
28
-10[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA

1

EXHIBIT A

2

AGREEMENT TO BE BOUND

3
4

I,

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

5
6

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

7

United States District Court for the Central District of California on

6

0

8

I

T

E

10
11
6
6
5
9

4

Y
W
K

13
14

C

A

P
R

16

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

17

subject to this Protective Order to any person or entity except in strict compliance
with this Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing this Order, even if
such enforcement proceedings occur after termination of this action.
I hereby appoint

[print or type full name] of
[print or type full address and telephone number] as my

19

California agent for service of process in connection with this action or of any

20

proceedings related to enforcement of this Order.

0

1

P

1

L

A

18

E

A

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

S

N

T

O

,

15

N

E
T
N
E
C

L A W G R O U P

L
L
O
K

A S H

12

7

K B

No. 5:13-cv-01469-JAK-PLA. I agree to comply with and to be bound by all the

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

S

U

P . C

1

9

[date] in the case of Pacific Solution Marketing, Inc. v. Master Cutlery, Inc. Case

21
22

Date:

23

City and State where sworn and signed:

24
25

Printed name:
[print name]

26
27

Signature:
[signature]

28
-11[PROPOSED] STANDING PROTECTIVE ORDER FOR CASES
ASSIGNED TO JUDGE JOHN A. KRONSTADT

CASE NO. 5:13-CV-01469-JAK-PLA