Elisabeth Martin v. Monsanto Company

Filing 48

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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ELISABETH MARTIN, on behalf of
herself, all others similarly situated, and
the general public,

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Plaintiff,

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Case No.: 5:16-cv-02168-JFW (SPx)

v.
MONSANTO COMPANY,

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STIPULATED PROTECTIVE ORDER

Defendant.

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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Plaintiff Elisabeth Martin (“Martin”) and Defendant Monsanto Company

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(“Monsanto”), by and through their respective counsel, have jointly stipulated to the terms of

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this Stipulated Protective Order, and with the Court being fully advised as to the same, it is

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hereby ORDERED:

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1. A. PURPOSES AND LIMITATIONS

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

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

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purpose other than prosecuting this litigation may be warranted. Accordingly, the parties

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hereby stipulate to and petition the Court to enter the following Stipulated Protective Order.

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The parties acknowledge that this Order does not confer blanket protections on all disclosures

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or responses to discovery and that the protection it affords from public disclosure and use

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

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under the applicable legal principles. The parties further acknowledge, as set forth in Section

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12.3, below, that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 and Judge John F. Walter’s Standing Order

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(Dkt. 11) sets forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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B.

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This action is likely to involve customer and pricing lists, development, commercial,

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financial, technical and/or proprietary, and personal information for which special protection

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from public disclosure and from use for any purpose other than prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of, among

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other things, confidential business or financial information, information regarding

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confidential business practices, or other confidential research, development, or commercial

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information (including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or otherwise

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

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

GOOD CAUSE STATEMENT

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common law. Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately protect

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

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permitted reasonable necessary uses of such material in preparation for and in the conduct of

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trial, to address their handling at the end of the litigation, and serve the ends of justice, a

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protective order for such information is justified in this matter. It is the intent of the parties

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that information will not be designated as confidential for tactical reasons and that nothing be

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

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

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case.

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2.

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2.1. Action: This pending federal law suit, which is captioned as Case No. 5:16-cv-

DEFINITIONS

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02168-JFW-SP.

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2.2.

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

information or items under this Order.

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2.3. “CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal

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Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.

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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”.

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2.6. Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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Martin v. Monsanto Company, Case No. 16-cv-2168
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2.7. Expert: a person with specialized knowledge or experience in a matter pertinent

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness

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or as a consultant in this Action.

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2.8.

“HIGHLY CONFIDENTIAL” Information or Items: Any Producing Party may

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designate as “HIGHLY CONFIDENTIAL”: (i) current and future business and marketing

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plans, except for advertisements or communications that have been disclosed to the public;

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(ii) research and development activities, including technology, know how and the like, which

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have not been disclosed to the public; (iii) commercial agreements with third parties

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containing competitively sensitive information, and the negotiations concerning such

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agreements, provided that the producing party has taken reasonable steps to keep the terms

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of such agreements and related negotiations – as distinct from the existence of the commercial

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relationship – out of the public domain; (iv) non-public communications with United States

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and foreign patent offices; (v) non-public communications with United States or foreign

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regulatory agencies; (vi) financial information, including non-public sales information,

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customer lists, purchases by customers, communications with potential customers, sales

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projections, profit calculations, income and costs (i.e., production, marketing and overhead));

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(vii) Confidential Information that a party is required to maintain as confidential under the

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terms of an agreement or other understanding; and (viii) any other category of information

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subsequently agreed to by the parties in writing as constituting “HIGHLY CONFIDENTIAL”

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information

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2.9. House Counsel: attorneys who are employees of a party to this Action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10. Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
2.11.

Outside Counsel of Record: attorneys who are not employees of a party to this

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

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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Action on behalf of that party or are affiliated with a law firm which has appeared on behalf

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of that party, and includes support staff.

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2.12. Party: any party to this Action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.13.

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this Action.

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2.14. Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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

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subcontractors.
2.15. Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”.
2.16. Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.

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3.

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The protections conferred by this Stipulation and Order cover not only Protected

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

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3)

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any testimony, conversations, or presentations by Parties or their Counsel that might reveal

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Protected Material.

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SCOPE

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

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4.

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Even after final disposition of this litigation, the confidentiality obligations imposed

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by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a

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court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal

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of all claims and defenses in this Action, with prejudice; and (2) final judgment herein after

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

DURATION

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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Action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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5.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take

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care to limit any such designation to specific material that qualifies under the appropriate

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standards. The Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify so that other portions of the

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material, documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

DESIGNATION PROTECTED MATERIAL

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber the case development process or to impose unnecessary expenses

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and burdens on other parties) may expose the Designating Party to sanctions.

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

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for protection do not qualify for protection, that Designating Party must promptly notify all

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other Parties that it is withdrawing the inapplicable designation.

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5.2. Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., section 5.2(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 clearly so designated

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before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix at a minimum, the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL,” to each page that contains protected material. If only a portion or

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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

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

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the margins).

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(b)

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

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

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

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

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

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

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

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producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” legend to each page that

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contains Protected 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 identify the protected

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

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(c)

for testimony given in depositions that the Designating Party identify the

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

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protected testimony.

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(d)

for information produced in some form other than documentary and for

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

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or portions of

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the information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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5.3. Inadvertent Failures to Designate. An inadvertent failure to designate qualified

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information or items does not, standing alone, waive the Designating Party’s right to secure

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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protection under this Order for such material. The Receiving Party must make reasonable

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

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6.

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

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2. Meet and Confer. The Challenging Party shall initiate the dispute resolution
process under Local Rule 37.1 et seq.

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all parties shall continue to afford the material in question the

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level of protection to which it is entitled under the Producing Party’s designation until the

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Court rules on the challenge.

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7.

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

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

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prosecuting, defending, or attempting to settle this Action. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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

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section 13 below (FINAL DISPOSITION).

ACCESS TO AND USE OF PROTECTED MATERIAL

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

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and in a secure manner that ensures that access is limited to the persons authorized under this

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Order.

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7.2.

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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disclose any information or item designated “CONFIDENTIAL” only to:

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Martin v. Monsanto Company, Case No. 16-cv-2168
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(a) the officers, directors, and employees of the Receiving Party to whom
disclosure is reasonably necessary for this Action;

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(b) any counsel working on this action on behalf of any party, including House

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Counsel, and all paralegal assistants, secretarial, stenographic and clerical employees

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working under the direct supervision of such counsel;

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

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is reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (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 Professional Vendors

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to whom disclosure is 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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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;

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

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

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that the witness sign the form attached as Exhibit A hereto; and (2) they will not be

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permitted to keep any confidential information unless they sign the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order; and

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(i) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions.

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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7.3. Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. HIGHLY

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CONFIDENTIAL material may only be disclosed to the persons listed in subsections (b)

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through (i) of the preceding paragraph.

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8.

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PROTECTED MATERIAL SUBPOENAED PRODUCED IN OTHER
LITIGATION

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If any Party has obtained Confidential Information under the terms of this Order and

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receives a request to produce such Confidential Information by subpoena or other compulsory

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process commanding the production of such Confidential Information, such Party shall

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promptly notify the Designating Party, including in such notice the date set for the production

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of such subpoenaed information and shall object to the production of such materials on the

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grounds of the existence of this Order.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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The terms of this Order are applicable to information produced by a Non-Party in this

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Action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such

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

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remedies and 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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In the event that a Party is required, by a valid discovery request, to produce a Non-

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Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party

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shall:

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(a) promptly notify in writing the Requesting Party and the Non-Party that some

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or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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

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

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description of the information requested; and

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(c) make the information requested available for inspection by the Non-Party, if

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requested.

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

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receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party

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

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bear the burden and expense of seeking protection in this court of its Protected Material.

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10.

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of

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

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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The inadvertent production of privileged or otherwise protected material shall be

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governed by the Court’s Order Regarding the Inadvertent Disclosure of Privileged

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Information in this Action.

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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12.

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

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MISCELLANEOUS

to seek its modification by the Court in the future.

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

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Order, no Party waives any right it otherwise would have to object to disclosing or producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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

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Material must comply with Civil Local Rule 79-5 and Judge John F. Walter’s Standing Order

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(Dkt. 11). Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue. If a Party’s request to file

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Protected Material 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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13.

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

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a written request by the Designating Party, each Receiving Party must return all Protected

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Material to the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any other

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

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Material is 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 Party) by the

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60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and (2) affirms that the Receiving Party has not retained any

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

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

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

FINAL DISPOSITION

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

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product, and consultant and expert work product, even if such materials contain Protected

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Material. Any such archival copies that contain or constitute Protected Material remain

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subject to this Protective Order as set forth in Section 4 (DURATION).

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14.

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

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VIOLATIONS

including, without limitation, contempt proceedings and/or monetary sanctions.

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STIPULATED AND AGREED TO on January 14, 2017.

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ELISABETH MARTIN

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By:

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/s/ Jack Fitzgerald*

MONSANTO COMPANY

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By:

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/s/ John J. Rosenthal

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*Pursuant to Local Rule 5-4.3.4(a)(2)(i), Jack Fitzgerald hereby attests that concurrence in

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the filing of this document ant its contents was obtained from all signatures listed.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED:

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Hon. Magistrate Judge Sheri Pym

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United States Magistrate Court Judge

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DATED: January 30, 2017
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Martin v. Monsanto Company, Case No. 16-cv-2168
STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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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 have

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

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United States District Court for the Central District of California on [date] in the case of

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Elisabeth Martin v. Monsanto Company, 5:16-cv-02168-JFW-SP. I agree to comply with and

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

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

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

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or item that is 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 for the

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

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

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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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: __________________________________

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Martin v. Monsanto Company, Case No. 16-cv-2168
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