Lorenzo Gomez Jr et al v. Ryan Peppler et al

Filing 33

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 32 (yb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

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LORENZO GOMEZ, JR., an individual,
Plaintiffs,

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Case No. 5:13-cv-02185-BRO-AJW
[Honorable Beverly Reid O’Connell]
PROTECTIVE ORDER

vs.

16 RYAN PEPPLER, an individual; JOHN
17 CAHOW, an individual,
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Defendants.

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The parties hereto have stipulated and agreed to entry of a Protective Order in
this case. A Protective Order shall be entered in this case, with the following terms,
conditions, and requirements:
PROTECTIVE ORDER

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1.

Certain information, documents, and other things (“Discovery

Material”) discovered from a party under the Federal Rules of Civil Procedure or
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[Proposed] PROTECTIVE ORDER

1 voluntarily produced by a party in this action may include confidential or private
2 information of the party from which the discovery is sought. Information,
3 documents, and other things, which are otherwise not objectionable, shall only be
4 produced whether voluntarily or in response to formal discovery, subject to this
5 Protective Order (“Order”).
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2.

Any of the parties producing Discovery Material in this litigation may

7 designate Discovery Material produced by it/him/her as “Highly Confidential –
8 Attorney’s Eyes Only” under the terms of this Order. This designation shall be
9 limited to information which the disclosing party in good faith believes contains or
10 reveals private, confidential, proprietary, or commercially sensitive information that
11 requires the protections provided by this Order. For purposes of this Order,
12 Discovery Material that may be designated “Highly Confidential – Attorney’s Eyes
13 Only” includes all non-public materials which contain information reflecting or
14 related to: employment files; personnel records; strategies for training or response;
15 trade secrets; proprietary information; studies or analysis by outside expert or
16 investigator; proprietary technical information; financial or tax data; personal
17 financial information; personal information; and documents defined and/or
18 described in California Penal Code sections 832.5, 832.7, and 832.8. A party may
19 designate Discovery Material as “Highly Confidential – Attorney’s Eyes Only” that
20 it believes contains or refers to trade secrets, non-public information, and or private
21 information that, if disclosed, could cause injury to the producing party. Any party
22 may challenge the designation of a document as “Highly Confidential – Attorneys’
23 Eyes Only” by first meeting and conferring with counsel for the party who imposed
24 said designation in compliance with L.R. 37-1, and if necessary, by thereafter
25 complying with Local Rule 37-2. Any document so designated as “Highly
26 Confidential – Attorneys’ Eyes Only” will remain subject to this protective order
27 until such time as the parties agree or the Court has ruled otherwise.
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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

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3.

Discovery Material that is designated “Highly Confidential –

2 Attorney’s Eyes Only,” and any documents or information derived therefrom, shall
3 be used solely for purposes of this litigation and may not be used for any other
4 purpose whatsoever, including but not limited to the purpose of dissemination to the
5 media or the public, or in connection with any other litigation.
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4.

Discovery Material designated “Highly Confidential – Attorney’s Eyes

7 Only” may be disclosed, summarized, described, characterized or otherwise
8 communicated or made available in whole or in part to the following persons: (a)
9 outside and in-house counsel who represent a party in this litigation, and the regular
10 and temporary employees and service vendors of such counsel assisting in the
11 conduct of the litigator, provided such disclosure may solely be for use in
12 accordance with this Order; (b) clients; (c) potential or active witnesses or deponents
13 and their counsel, during the course of, or, to the extent necessary in preparation for,
14 depositions, testimony or trial in this litigation; (d) experts or consultants, including
15 information technology vendors, and their employees and/or staff members engaged
16 to assist counsel for a party in the litigation; (e) the Court; (f) court reporters
17 employed by the Court or in connection with the litigation; (g) authors or recipients
18 of documents or persons referred to in any document; and (h) any other person only
19 upon order of the Court or upon stipulation of the producing party.
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5.

Anyone who has agreed to be bound by this agreement and receives

21 “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” discovery material
22 shall be bound by the terms of this agreement concerning the use of these discovery
23 materials.
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6.

The designation of Discovery Material as “Highly Confidential –

25 Attorney’s Eyes Only” shall be so designated by affixing the legend of “HIGHLY
26 CONFIDENTIAL – ATTORNEY’S EYES ONLY” to each page containing any
27 “Highly Confidential – Attorney’s Eyes Only” Discovery Material. Affixing the
28 legend on the cover of any multipage document which is bound, stapled, or
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[Proposed] PROTECTIVE ORDER

1 otherwise securely attached shall designate all pages of the document as “Highly
2 Confidential – Attorney’s Eyes Only,” unless otherwise indicated by the producing
3 party. Only those portions of multipage documents that qualify as “Highly
4 Confidential – Attorney’s Eyes Only,” should be designated as such.
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7.

If the Disclosing Party inadvertently produces any Highly Confidential

6 Information without designating it as such, it may be remedied by (1) promptly
7 notifying the other parties of the error; and (2) providing a substitute copy of the
8 Highly Confidential Information with a proper legend. In that event, the parties
9 receiving the inadvertently produced undesignated Highly Confidential Information
10 will: (1) return the previously produced Highly Confidential Information and
11 destroy all copies thereof; and (2) if the party had already disseminated the Highly
12 Confidential Information to any person, the party will notify all such persons in
13 writing of the need to return such Highly Confidential Information and not to further
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disseminate it. The initial failure to designate information in accordance with this
Order shall not be deemed a waiver of confidentiality.
8.

In the case of depositions or other pretrial testimony, the designation of

Discovery Material as “Highly Confidential – Attorney’s Eyes Only” for purposes
of this order shall be made (i) by a statement on the record, by counsel, at the time
of such disclosure; or (ii) by written notice, sent by counsel to all parties within
twenty (20) business days after receiving a copy of the transcript thereof; and in
both of the foregoing instances, by directing the court reporter that the appropriate
confidentiality legend be affixed to the first page and all portions of the original and
all copies of the transcript containing any “Highly Confidential – Attorney’s Eyes
Only” Discovery Material. All deposition transcripts and other pretrial testimony
shall be treated as “Highly Confidential – Attorney’s Eyes Only” until the expiration
of the twentieth business day after receipt by counsel of a copy of the transcript
thereof. Thereafter, only those portions of the transcripts designated as “Highly
Confidential – Attorney’s Eyes Only” in the litigation shall be deemed “Highly

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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

1 Confidential – Attorney’s Eyes Only” Discovery Material. The parties may modify
2 this procedure for any particular deposition, through agreement on the record at such
3 deposition, without further order of the Court. No amendment or modification
4 agreed to by the parties will have the force or effect of a Court order unless the
5 Court approves it. The provisions of this Protective Order do not apply to trial or
6 other hearings.
9.
“Highly Confidential – Attorney’s Eyes Only” Discovery Material
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8 may be provided to persons listed in paragraphs 4 and 5 above, provided that such
9 individuals are using said “Highly Confidential – Attorney’s Eyes Only” Discovery
10 Material solely in connection with this litigation and provided further that such
11 individuals sign a nondisclosure agreement in the form of the Assurance of
12 Compliance at Exhibit A attached hereto.
10. In the event that counsel for any party determines to file with the Court
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any document subject to the provisions of this Order, or to submit to the Court any
such document or in the information contained therein for any purpose, such
document or information shall be filed under seal with a copy of the title page
attached to the front of the sealed envelope or container and the label “Highly
Confidential – Subject to Protective Order dated [insert date of Order]” clearly
marked thereon. Any request to file a document under seal must comply with Local
Rule 79-5.
11.

If the Court grants a party permission to file an item under seal, that

party must comply with Local Rule 79-5.
12.

If information subject to a claim of attorney-client privilege, the

attorney work product doctrine, or any other ground on which production of such
information should not be made to any party is nevertheless inadvertently produced
to such party or parties, such production shall in no way prejudice or otherwise
constitute a waiver of, or estoppel as to, any claim of privilege, work product, or

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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

1 other ground for withholding production to which the producing party would
2 otherwise be entitled.
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13.

Prior to using “Highly Confidential – Attorney’s Eyes Only” Discovery

4 Material in any court proceeding in this action, Counsel must first take up with the
5 judicial officer at the appropriate time how confidential material will be handled in
6 court filings or during court proceedings.
14. The parties to the litigation agree that the production of any Discovery
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8 Material by any non-party to the litigation shall be subject to and governed by the
9 terms of this Order, and a party may designate as “Highly Confidential – Attorney’s
10 Eyes Only” any materials produced by a non-party if such designation is appropriate
11 under this Order.
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15.

In the event that additional parties join or are joined in the litigation,

13 they shall not have access to “Highly Confidential – Attorney’s Eyes Only”
Discovery Material until newly joined party by its counsel has executed and filed
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with the Court its agreement to be fully bound by this Order.
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16. The provisions of this Order shall become effective upon its entry by
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the Court or an alternative thereto that is satisfactory to the parties; however, all
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material produced and designated as “Highly Confidential – Attorney’s Eyes Only”
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in the manner prescribed herein prior to the effective date of this Order shall be
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subject to, and governed by, its provisions as though entered by the Court.
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17. If any third party serves a subpoena or other process or request seeking
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to review any information designated as “Highly Confidential – Attorney’s Eyes
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Only,” the party to whom the demand is made (the “Recipient”) shall inform the
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producing party’s counsel immediately in writing and shall allow producing party’s
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counsel to object to the subpoena or other process. Nothing herein shall be
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construed as requiring the Recipient or anyone else covered by this Order to
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challenge or appeal any order requiring production of “Highly Confidential –
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Attorney’s Eyes Only” Discovery Material covered by this Order, or to subject
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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

1 himself, herself, or itself to any penalties for non-compliance with any legal process
2 or order, or to seek any relief from this Court. Nothing herein shall be construed as
3 requiring a party not to comply with any lawfully issued subpoena or process, absent
4 a court order.
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18.

Nothing in this Order shall bar or otherwise restrict counsel for any

6 party from rendering advice to their clients with respect to this litigation and, in the
7 course thereof, from relying upon the examination of “Highly Confidential –
8 Attorney’s Eyes Only” Discovery Material except in accordance with the terms of
9 this Order.
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19.

Nothing in this Order, nor the production of any information or

11 document under the terms of this Order, nor any proceedings pursuant to this Order,
12 shall be deemed to have the effect of an admission or waiver by either party or of
13 altering the confidentiality or non-confidentiality of any such document or
information or altering any existing obligation of any party or the absence thereof.
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20. This Order shall survive the final termination of this action, to the
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extent that the information contained in “Highly Confidential – Attorney’s Eyes
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Only” Discovery Material is not or does not become known to the public, and the
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Court shall retain jurisdiction to resolve any dispute concerning the use of the
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information disclosed hereunder. Within sixty (60) calendar days after the
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conclusion of this action in its entirety (including expiration of appeal periods or the
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execution of a settlement agreement among the parties finally disposing of this
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action), all parties and persons having received “Highly Confidential – Attorney’s
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Eyes Only” Discovery Material shall dispose of all such material either by (i)
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returning such material to counsel for the producing party, or (ii) destroying such
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material in a manner that ensures that it will not be disclosed to or disseminated or
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received by any person. Upon request, the parties and their counsel shall separately
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provide written certification to any producing party making the request that such
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disposal has been completed. Outside counsel for the parties shall be entitled to
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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

1 retain all court papers, deposition and trial transcripts, exhibits used in affidavits, at
2 depositions, and at trial, and attorney work-product, including materials which
3 contain, quote, discuss, or analyze “Highly Confidential – Attorney’s Eyes Only”
4 Discovery Material, provided that such counsel and employees of such counsel shall
5 not disclose such materials to any person unless, after reasonable prior notice to the
6 producing party, the disclosing counsel has obtained permission pursuant to court
7 order or by agreement of the producing party. The “Highly Confidential –
8 Attorney’s Eyes Only” Discovery Material kept by counsel pursuant to this
9 paragraph shall be maintained in accordance with the terms of this Order. Unless
10 otherwise agreed, outside counsel for each party may retain archival copies of all
11 “Highly Confidential – Attorney’s Eyes Only” Discovery Material marked as an
12 exhibit during a deposition, used at a hearing or at trial, or filed with the Court, and
13 this Order shall remain in force with respect to such material.
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21.

This Agreement shall be binding upon and for the benefit of the

undersigned parties, their successors and assigns to the full extent the law allows.
22.

This Order is not binding on the Court or Court personnel. The Court

may amend or modify this Order in the interests of justice or for public policy
reasons at any time.

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APPROVED AND SO ORDERED.
October 22, 2014
DATED: _______________

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The Honorable Andrew J. Wistrich,
United States Magistrate Judge

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4819-5469-5968.1

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[Proposed] PROTECTIVE ORDER

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EXHIBIT A

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ASSURANCE OF COMPLIANCE

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I, ____________________________, under penalty of perjury under the laws

5 of the United States of America, declare and state as follows:
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I reside in the City/County of

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and State of

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I have read the annexed Protective Order (“Order”) dated

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9 2014 in the action entitled Lorenzo Gomez, Jr. v. Ryan Peppler, et al., Case No.
10 EDCV 13-02185, which is currently pending in the United States District Court of
11 California, Central District, Eastern Division.
I am familiar with and agree to comply with and be bound by the provision of
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13 that Order, and I will not divulge to persons other than those specifically authorized
by the Order, and will copy or use except solely for the purpose of this litigation,
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any Discovery Material designated as "Highly Confidential - Attorneys' Eyes Only.”
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I consent to the jurisdiction of the United States District Court for the Central
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District of California for the purpose of enforcing said Order, enjoining any
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anticipated violation of the Order or seeking damages for the breach of said Order.
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(Signature)

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4819-5469-5968.1

[Proposed] PROTECTIVE ORDER