Netecs Corporation v. Damon McClure

Filing 28

ORDER APPROVING REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Notice of Lodging 26 (SEE ORDER FOR DETAILS) (dts)

1 Henry B. LaTorraca, State Bar No. 71607
2 LAW OFFICE OF HENRY B. LaTORRACA

400 Oceangate, Suite 700

3 Long Beach, California 90802-4306

Tel: [phone] | Fax: [phone]

4 [e-mail]

5 Attorneys for Plaintiff and Counterclaim Defendant
and
6 Netecs Corporation, a California corporation; Chris
Counterclaim Defendants Jeffery Tooley and
7 Tooley

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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GEORGE E. BROWN, JR. COURTHOUSE (RIVERSIDE)

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

8

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NETECS CORPORATION, a
California corporation,
Plaintiff
v.
DAMON McCLURE, a natural
person, and
DOES 1 through 100, inclusive;
Defendants

Case No. 5:16-cv-02452 JGB (KKx)
Assigned to Hon. Jesus G. Bernal
Courtroom “1”
REVISED FIRST AMENDED
STIPULATED PROTECTIVE
ORDER
Complaint filed:
October 31, 2016
Counterclaim filed: December 6, 2016
Trial Date:
Not set
Pre-Trial Conf.: Not set

DAMON McCLURE, a natural
person,
21
Counterclaimant,
22
v.
23 NETECS CORPORATION, a
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24 California corporation,
25 JEFFREY TOOLEY, a natural
26 person, and
27 CHRIS TOOLEY, a natural person,
28

Counterclaim Defendants
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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Counterclaim Defendants Netecs Corporation, a California corporation,

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Jeffery Tooley, and Chris Tooley on the one hand, and on the other hand, Defendant

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and Counterclaimant Damon McClure hereby submit this Revised First Amended

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Stipulated Protective Order to include the designation of material marked as

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“HIGHLY - ATTORNEYS’ EYES ONLY” as follows:

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GOOD CAUSE STATEMENT

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1. This action is likely to involve trade secrets, customer and pricing lists and

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other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

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from use for any purpose other than prosecution of this action is warranted.
As to the parties to this action and non-parties, the following is defined as
Protected Information for the purpose of this Order:

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Confidential trade secrets and confidential proprietary

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information; confidential Documents and data regarding

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customers and potential customers, including, but not limited to,

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their identity, contact information, communications with them

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regarding goods and services, pricing, sources, and availability of

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and sources of such goods and services, and confidential “leads”

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for the sale of goods or services to existing or potential customers;

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confidential sales information; confidential quotes, invoices, and

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contracts with existing and/or potential customers; confidential

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generation, distribution, and use of confidential customer

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information; confidential information regarding vendors and

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vendors’ pricing; confidential organization, operations, and

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business strategy of a business; confidential or proprietary business

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or financial information, confidential or proprietary research,

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development, commercial, technical, and/or resources of a

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business; confidential business or financial information,
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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information regarding confidential business practices, or other

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confidential research, development, or commercial information

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(including information implicating privacy rights of third parties),

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information otherwise generally unavailable to the public;

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information that may not be disclosed to the other party per

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contract; information protected by a right of privacy; information

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protected from disclosure by reason of a privilege; and information

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protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law.
The Parties consider the aforementioned Protected Information to be

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

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proprietary, confidential, commercially sensitive, and/or private.

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Accordingly, to expedite the flow of Protected Information, to facilitate the

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prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect Protected Information the parties and non-parties are

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

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

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conduct of trial, to address their handling at the end of the litigation, and serve

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the ends of justice, a protective order for such information is justified in this

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matter. To address these concerns and avoid lengthy and expensive litigation

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over the issue, the Parties agree that a mutually agreeable protective order will

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speed the discovery and litigation processes. Therefore, the Parties believe

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good cause exists for designating such information “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as defined in

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Paragraphs 6 and 7 below. It is the intent of the parties that information will

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not be designated as CONFIDENTIAL or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” for tactical reasons and that nothing be so

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designated without a good faith belief that it is Protected Information which

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00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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has been maintained in a confidential, non-public manner, and there is good cause

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

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2. Plaintiff Netecs Corporation has filed this action alleging unlawful

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practices by Defendant in intentionally damaging its electronic database and

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misappropriating its trade secrets consisting of data regarding its customers,

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potential customers, commission structure, vendors, especially involving the use of

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customer information and “leads,” which are information developed by Plaintiff

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indicating a prospective purchaser and or a particular product or service. To support

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to Plaintiff’s claims, it intend to produce various documents and tangible things in
its possession, custody, and/or control, including documents relating to the

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

generation and distribution of leads generally, specific leads, sales information,

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financial information, commission structures, and confidential contracts with its

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customers. Some of the aforementioned information is proprietary, commercially

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sensitive, and private, and would result in competitive harm to Plaintiff if disclosed

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at any time. The foregoing is not a limitation of Protected Information defined

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above.

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3. Similarly, in response to Plaintiff’s discovery requests, Defendant will

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produce certain documents and tangible things in his possession, custody, and/or

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control including those relating to his generation and distribution of leads generally,

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specific leads, sales information, financial information, commission structures, and

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confidential contracts with his customers. Some of the aforementioned information

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is proprietary, commercially sensitive, and private, and would result in competitive

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harm to Defendant if disclosed at any time. The foregoing is not a limitation of

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Protected Information defined above.

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PURPOSES AND LIMITATIONS

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4. Disclosures, court filings, and discovery activity in this action are likely to

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involve production of confidential, privileged, proprietary, trade secret, or private

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information for which special protection from public disclosure and from use for
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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any purpose other than prosecuting this litigation would be warranted. This

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Order does not confer blanket protection on all disclosures or responses to

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discovery and the protection it affords extends only to the limited information

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or items that are entitled under the applicable legal principles to treatment as

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Protected Information.
(a) Exercise of restraint and care in designating Protected Information.

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Each party or non-party that designates Protected Information under this

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Order must take care to limit any such designation to specific material that

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qualifies under the appropriate standards.
(b) Mass, indiscriminate, or routine designations are prohibited.

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

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Designations should be justified and not made for an improper purpose (e.g.,

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to unnecessarily encumber or retard the case development process, or to

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impose unnecessary expenses and burdens on other parties). If it comes to a

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party’s or a non-party’s attention that information or items that it designated

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for protection do not qualify for protection at all, or do not qualify for the

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level of protection initially asserted, that party or non-party must promptly

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notify all other parties that it is withdrawing the mistaken designation.
(c) Filing Under Seal. The parties further acknowledge, as set forth

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19

below, that this Revised First Amended Stipulated Protective Order does not

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entitle them to file Protected Information under seal; Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will be

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

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seal.

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The Parties and non-parties will endeavor to file, when possible,

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redacted versions of documents containing “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” designations, rather than

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seeking to file the entire document under seal.

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00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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DESIGNATION OF PROTECTED INFORMATION
5. Parties and non- parties may designate any Document, including discovery

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responses, deposition testimony, documents obtained by inspection of files or

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facilities or by production of documents, or any portion of any Document, as well as

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any Transcript and exhibits thereto, produced or filed in this proceeding, as

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“CONFIDENTIAL” as long as the Document contains “CONFIDENTIAL”

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Protected Information specified in Paragraph 6 below, or “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” Protected Information specified

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in Paragraph 7 below.
(a) “Document” shall include any papers, transcripts, tapes, documents, disks,

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

diskettes, CDs and DVDs, video or audio files, physical or electronic or digital

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copies or recordings, and other tangible things produced by any person in

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connection with this litigation, and shall include, without limitation, all original

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written, recorded (sound or video) or graphic matters and all identical or non-

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identical copies thereof.

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(b) “Transcript” shall mean any stenographic or verbatim recording of an
interview, sworn statement, deposition, or hearing.
6. For purposes of this Revised First Amended Stipulated Protective Order, a

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party or non-party may designate Protected Information as “CONFIDENTIAL” if

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the designating party or non-party reasonably believes the Protected Information

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contains or discloses any information within the meaning of the definition of

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“Protected Information” in paragraph 1, consistent with Federal Rule of Civil

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Procedure 26(c)(1)(G).

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7. For purposes of this Revised First Amended Stipulated Protective Order, a

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party or non-party may only designate Protected Information as “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” if the designating party or non-

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party reasonably believes the Protected Information contains or discloses any

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information within the meaning of the definition of “Protected Information” defined
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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in paragraph 1 above and the designating party or non-party believes, in good

2

faith, the disclosure of the information is likely to cause harm to the

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competitive position of the designating party or non-party holding proprietary

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rights thereto.

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8. For purposes of this Revised First Amended Stipulated Protective

6

Order, Protected Information, defined in Paragraph 1, is either designated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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ONLY.”

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9. Protected Information shall be used only for the purpose of litigation
of this action and shall not be used for any other purpose whatsoever.

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

PERSONS TO WHOM PROTECTED INFORMATION MAY BE

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DISCLOSED

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10. The terms of this protective order do not apply to the Court and

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court personnel, who are subject only to the Court’s internal procedures

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regarding the handling of material filed or lodged, including material filed or

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lodged under seal. No provision or language in this agreement should be

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interpreted as imposing any terms on the Court or court personnel.

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11. Protected Information designated as “CONFIDENTIAL” may be

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disclosed, summarized, described, characterized, or otherwise communicated

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or made available in whole or in part only to Qualified Persons. For purposes

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of this Revised First Amended Stipulated Protective Order, “Qualified

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Persons” shall mean the following:

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(a) Counsel for any party hereto, including in-house counsel, and all

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partners, associates or of-counsel attorneys of counsel’s law firm and all

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paralegal assistants, stenographic and clerical employees thereof when

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operating under the direct supervision of such partners, associates or of-

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counsel attorneys.

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00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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(b) Court and Mediator personnel, including stenographic reporters engaged

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in such proceedings as are necessarily incident to the preparation for trial and/or trial

3

of this action.

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(c) Any party to this action, including but not limited to any partner,
employee or representative thereof.
(d) Persons noticed for depositions or designated as trial witnesses, or those

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whom counsel of record in good faith expect to testify at trial or deposition, only to

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the extent reasonably necessary in preparing to testify and who have, prior to the

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disclosure, signed the statement attached hereto as Exhibit “A” attesting to the fact
that they have reviewed and agreed to be bound by the provisions of this Revised

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

First Amended Stipulated Protective Order. Such persons shall not be permitted to

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make copies of or otherwise have copies or duplicates of any documents or

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information designated as “CONFIDENTIAL.”

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(e) Persons whose depositions are being taken in this action, who have, prior

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to the commencement of their deposition, signed the statement attached hereto as

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Exhibit “A” (which is to be made part of the official transcript of that deposition)

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attesting to the fact that they have reviewed and agreed to be bound by the

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provisions of this Revised First Amended Stipulated Protective Order. In the event

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a deponent does not sign Exhibit “A” prior to the commencement of his or her

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deposition, no information designated as “CONFIDENTIAL” shall be shown to the

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deponent and his or her deposition shall not be considered complete until the

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deposing party has an opportunity to raise the issue with the Court.

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(f) Independent experts or consultants (not regularly employed by or

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otherwise associated with a party) who are retained to assist in the handling of this

25

action to furnish technical or expert advice or to give expert testimony at trial, only

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to the extent that the information is pertinent to the expert’s or consultant’s opinions,

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provided that disclosure of Protected Information to such experts or consultants

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shall be made only on the following conditions:
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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i. Prior to any Protected Information being disclosed to any expert or

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consultant, counsel of record shall be required to obtain from said expert or

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consultant a signed statement, in the form of Exhibit “A” attached hereto

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(which shall be maintained by counsel of record for that party), attesting to

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the fact that the expert or consultant has reviewed and agreed to be bound by

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the provisions of this Revised First Amended Stipulated Protective Order.

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ii. In the event a consulting expert becomes a testifying expert, a copy

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of the expert’s executed statement in the form of Exhibit “A” must be

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provided to opposing counsel in advance of the expert testifying at deposition

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

or trial.
(g) Outside copy and litigation support vendors who have, prior to the

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disclosure of such information, signed the statement attached hereto as

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Exhibit “A.”

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12. The parties agree to meet and confer in good faith on how to

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proceed if a party wishes to use a Document or other evidence designated as

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HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or the Protected

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Information in such Document or other evidence so designated for purposes

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of a deposition or witness preparation. Barring agreement, the Document or

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other evidence designated as HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY, and the Protected Information in such Document or other

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evidence so designated, may not be used without a court order.

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Protected Information designated as “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” may be disclosed, summarized, described,

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characterized, or otherwise communicated or made available in whole or in

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part only to the following persons:

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(a) Counsel for any party hereto, including in-house counsel, and all

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partners, associates or of-counsel attorneys of counsel’s law firm and all

28

paralegal assistants, stenographic and clerical employees thereof when
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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operating under the direct supervision of such partners, associates or of-counsel

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attorneys.

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(b) Court and Mediator personnel, including stenographic reporters engaged

4

in such proceedings as are necessarily incident to the preparation for trial and/or trial

5

of this action.

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(c) Independent experts or consultants (not regularly employed by or

7

otherwise associated with a party) who are retained to assist in the handling of this

8

action to furnish technical or expert advice or to give expert testimony at trial, only

9

to the extent that the information is pertinent to the expert’s or consultant’s opinions,
provided that disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

ONLY” Information to such experts or consultants shall be made only on the

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following conditions:

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i. Prior to any “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY”

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Information being disclosed to any expert or consultant, counsel of record shall be

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required to obtain from said expert or consultant a signed statement, in the form of

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Exhibit “A” attached hereto (which shall be maintained by counsel of record for that

17

party), attesting to the fact that the expert or consultant has reviewed and agreed to

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be bound by the provisions of this Revised First Amended Stipulated Protective

19

Order.

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ii. In the event a consulting expert becomes a testifying expert, a copy of the

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expert’s executed statement in the form of Exhibit “A” must be provided to

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opposing counsel in advance of the expert testifying at deposition or trial.

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(d) The author of the document and any authorized recipient of such
document in the ordinary course of business.

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(e) Outside copy and litigation support vendors who have, prior to the

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disclosure of such information, signed the statement attached hereto as Exhibit “A.”

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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(f) Any other person agreed to in writing by the designating Party or

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allowed through Court Order, who has, prior to the disclosure of such

3

information, signed the statement attached hereto as Exhibit “A.”

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13. A copy of any signed Exhibit “A” shall be provided by the

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receiving party’s counsel to the designating party’s counsel, with the

6

exception of those noted in paragraphs 11(f)(i) and 12(c)(i) of this Order.

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METHOD OF DESIGNATING PROTECTED INFORMATION

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9

14. The party or third party seeking protection may designate Protected
Information as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” by placing or affixing to each designated page

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

of the Document or Transcript, prior to production, the notation

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“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL - ATTORNEYS’

13

EYES ONLY,” respectively. Such designation shall constitute a

14

representation by counsel for the party or non- party making the designation

15

that the Document or the Transcript, or any portion thereof so designated,

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constitutes “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” information as defined in paragraphs 6 and 7,

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respectively, of this Revised First Amended Stipulated Protective Order.

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(a) An inadvertent failure to designate an item as “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” shall not be

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deemed a waiver of the rights afforded by this Revised First Amended

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Stipulated Protective Order. A party or third party that inadvertently fails to

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mark an item as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” at the time of production may thereafter

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inform the other Parties of the error and designate the item

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

27

ONLY” at that time. Such designation and notice thereof shall be made in

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writing, accompanied by substitute copies of any documents appropriately
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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

2

EYES ONLY.”
item according to its designation until further written agreement of the parties or

5

order of the Court. Within five (5) days of receipt of the substitute copies, the

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receiving party shall return or destroy the previous unmarked items and all copies

7

thereof, and/or shall destroy any items or copies thereof containing notes of counsel

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for the receiving party. In addition, the receiving party shall make reasonable efforts

9

to recover all non-designated versions of any Document and to notify all receivers

10

of the non-designated versions of the Document. Provided the receiving party and

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

(b) Upon receipt of the substitute copies, the receiving party shall treat the

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LAW OFFICE OF HENRY B. LA TORRACA

3

its counsel act in good faith to secure compliance with the terms of this Protective

12

Order, the receiving party and its counsel shall incur no liability for disclosures

13

made prior to notice of such designation. The designating party may request in

14

writing, and the receiving party shall within ten (10) days of such a request provide

15

in writing, an identification of all persons not qualified under this Protective Order

16

who have received “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” Protected Information prior to the time it was so

18

designated.

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(c) All items produced prior to the filing and entry of this Revised First

20

Amended Stipulated Protective Order may be designated as “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” within fifteen (15)

22

days of the filing and entry.

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15. If a party wishes to designate testimony or an exhibit as

24

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

25

ONLY” during the course of a deposition in this action, it shall do so by stating such

26

designation on the record. Counsel for the party designating the testimony or

27

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

28

EYES ONLY” shall make reasonable arrangements to have only the persons
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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designated in paragraphs 11 and 12 above, respectively, present during the

2

testimony containing Protected Information and/or presentation, quotation or

3

reference to the exhibit containing Protected Information. In addition, after a

4

deposition, counsel for any party or non-party may designate a deposition as

5

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

6

ONLY” by serving upon counsel for each party a written list of the specific

7

portions as to which such status is claimed. Such written list must be served

8

within ten (10) business days after transmittal to counsel of the transcript of

9

such testimony.
16. When Protected Information designated as “CONFIDENTIAL” is

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

incorporated into a Transcript of a deposition, arrangements shall be made by

12

the designating Party’s counsel with the attending reporter to label

13

“CONFIDENTIAL” those portions of the Transcript containing such

14

information and only those portions containing such information. Such

15

designated portions of the Transcripts (and all copies thereof) shall be

16

separately bound by the court reporter and shall thereafter be subject to the

17

same provisions herein as applied to any other “CONFIDENTIAL” Protected

18

Information.

19

17. When “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

20

ONLY” Protected Information is incorporated into a Transcript of a

21

deposition, arrangements shall be made by the designating Party’s counsel

22

with the attending reporter to label “HIGHLY CONFIDENTIAL -

23

ATTORNEYS’ EYES ONLY” those portions of the Transcript containing

24

such information and only those portions containing such information. Such

25

designated portions of the Transcript (and all copies thereof) shall be

26

separately bound by the court reporter and shall thereafter be subject to the

27

same provisions herein as apply to any other “HIGHLY CONFIDENTIAL -

28

ATTORNEYS’ EYES ONLY” Information.
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

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2

TREATMENT OF PROTECTED INFORMATION
18. The substance or content of Protected Information, as well as all notes
and memoranda relating thereto, shall not be disclosed to anyone other than the

4

persons designated in paragraphs 11 and 12 above, respectively, either during the

5

pendency of this action, or subsequent to its final determination. The Parties and

6

their counsel shall take reasonable precautions to ensure that no unauthorized

7

disclosure of Protected Information occurs. Nothing in this Revised First Amended

8

Stipulated Protective Order shall prevent any producing party from using or

9

disclosing its own “CONFIDENTIAL Protected Information” or “HIGHLY

10

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” Protected Information.

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400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

3

19. If a Party seeks to include or reference any Protected Information in any

12

filings with the Court, the Party must first comply with the procedures and

13

requirements for filing under seal set forth in Civil Local Rule 79-5 of the United

14

States District Court for the Central District of California. No Party shall file any

15

documents with Protected Information without complying with these procedures and

16

requirements for filing under seal.

17

20. In the event that this matter proceeds to trial, if any Party seeks to

18

introduce Protected Information designated as “CONFIDENTIAL” or “HIGHLY

19

CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” the Parties shall meet and

20

confer regarding whether and, if so, in what manner such information can be used

21

and presented at trial. Any use of Protected Information at trial shall be governed by

22

the orders of the trial judge. This Order does not govern the use of Protected

23

Information at trial.

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25

21. Upon the final determination of this action (and all appeals and writs),
whether by final non-appealable judgment, settlement, or otherwise:

26

(a) The Court and court personnel will continue to be subject only to the

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Court’s internal procedures regarding the handling of material filed or lodged,

28

including material filed or lodged under seal.
00040778.DOC

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REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

(b) The terms of this Revised First Amended Stipulated Protective

2

Order shall be binding in perpetuity on all persons designated in paragraphs

3

11 and 12, and all obligations and duties arising under this Revised First

4

Amended Stipulated Protective Order shall survive the termination of this

5

action;

6

(c) Counsel of record for each party receiving Protected Information

7

shall, upon written request by the party that produced the Protected

8

Information, either assemble and return to the disclosing party all Documents

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” or shall assemble and destroy all Documents

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

so designated, including all summaries or other material containing or

12

disclosing Protected Information, the destruction of which shall be confirmed

13

in writing to the party that produced the Protected Information within thirty

14

(30) days of a request for such return or destruction made by that party. All

15

materials returned to the Parties or their counsel by the Court likewise shall be

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disposed of in accordance with this paragraph. However, nothing herein shall

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require any party or counsel to disclose to any other Party or counsel any

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materials protected by the attorney-client privilege or attorney-work product

19

doctrine even if they contain another party’s Protected Information. Such

20

materials shall be destroyed, not returned, in response to a request made

21

pursuant to this Paragraph. Also, nothing herein shall preclude counsel of

22

record from maintaining one copy of all case files in connection with the

23

action even if they contain Protected Information, but such counsel of record

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shall continue to treat such filings containing Protected Information according

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to the protections afforded by this Stipulated Revised First Amended

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Protective Order.

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00040778.DOC

15

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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22. Nothing in this Revised First Amended Stipulated Protective Order shall

4

be construed as authorizing a party to disobey a lawful subpoena or court order

5

issued in another action. If a Party is served with a subpoena or a court order issued

6

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

7

this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

8

ATTORNEYS’ EYES ONLY” that Party must:

9

include a copy of the subpoena or court order;

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

(a) promptly notify in writing the designating party. Such notification shall
(b) promptly notify in writing the party who caused the subpoena or order to

12

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

13

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

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this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the designating party whose Protected Material may be affected.
If the designating party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

19

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

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EYES ONLY” before a determination by the court from which the subpoena or

21

order issued, unless the Party has obtained the designating party’s permission. The

22

designating party shall bear the burden and expense of seeking protection in that

23

court of its confidential material and nothing in these provisions should be construed

24

as authorizing or encouraging a receiving party in this action to disobey a lawful

25

directive from another court.

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CHALLENGES TO DESIGNATIONS OR PROTECTIVE ORDER

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23. No party shall be obligated to challenge the propriety of any designation
of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
00040778.DOC

16

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

ONLY” Protected Information by another party or non-party, and the failure

2

to do so shall not constitute a waiver or otherwise preclude a subsequent

3

challenge to the designation. In the event a dispute arises regarding this

4

Stipulated Revised First Amended Protective Order or the parties’ activities

5

relating to it (including but not limited to, challenging the propriety of

6

specific designations, objecting to a Party’s abuse of its ability to designate

7

materials “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

8

ATTORNEYS’ EYES ONLY,” or seeking a modification of this Stipulated

9

Revised First Amended Protective Order), the parties shall follow the
procedures set forth in Rule 37 of the Federal Rules of Civil Procedure to

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

resolve the dispute unless otherwise ordered by the Court. The party

12

challenging the designations shall treat the materials according to the

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

14

ONLY” designations and this Stipulated Revised First Amended Protective

15

Order until the Court orders otherwise. The party seeking to enforce the

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES

17

ONLY” designations shall have the burden on the motion to prove the legal

18

and factual basis for upholding the designations. If a party wants to file under

19

seal a motion pursuant to Rule 37 of the Federal Rules of Civil Procedure, it

20

or he may file a stipulation to that effect or the party seeking to file under seal

21

may file an ex parte application making the appropriate request in accordance

22

with paragraph 1 of this Revised First Amended Stipulated Protective Order.

23

To be clear, regardless of any stipulation between the parties, any party

24

seeking to file a motion under seal must comply with Civil Local Rule 79-5

25

(setting forth the procedures that must be followed and standards that will be

26

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

27

seal).

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00040778.DOC

17

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1
2

MISCELLANEOUS PROVISIONS
24. Inadvertent production by any party of a document containing privileged

3

attorney-client or other privileged communications, attorney work product

4

immunity, or other information not subject to discovery, shall not constitute a

5

waiver of any privilege, immunity or other right not to produce such a document. In

6

the event a receiving party discovers or believes it has received information that was

7

inadvertently produced and would normally be subject to a claim of attorney-client

8

privilege or work product immunity, it will bring that fact to the attention of the

9

producing party immediately upon discovery. In the event that a producing party
discovers that it has produced either attorney-client privilege or work-product

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

protected documents, it will bring that fact to the attention of the receiving party

12

immediately upon discovery. Upon request by the producing party, the receiving

13

party will promptly return to the producing party any attorney-client privilege or

14

work-product-protected document and any copies that the receiving party may have

15

made, which the producing party will keep separately and preserve. Upon request

16

by the producing party, the receiving party will promptly disclose the names of any

17

individuals who have read or have had access to the attorney-client privilege or

18

work-product-protected document. Further, the receiving party must take

19

reasonable steps to retrieve the information if the receiving party disclosed it before

20

being notified. Return of the documents by the receiving party shall not constitute

21

an admission or concession, or permit any inference, that the returned document or

22

thing is, in fact, properly subject to a claim of attorney-client privilege or work

23

product immunity.

24

25. This Revised First Amended Stipulated Protective Order shall survive the

25

final conclusion of this action and shall continue in full force and effect, and the

26

Court shall retain jurisdiction to enforce this Order. Within ninety (90) days after

27

the final conclusion of this action and all related appeals and/or writs seeking review

28

of the judgment in this action and all orders therein and re-trial, if any, and of the
00040778.DOC

18

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

judgment and all related appeals and/or writs seeking review of the judgment

2

in this action and all orders therein and re-trial, if any, all Protected

3

Information designated as provided herein as “CONFIDENTIAL” or

4

“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” shall, upon

5

request of the designating party or non-party, be either destroyed or returned

6

to that person or entity. Notwithstanding any of the foregoing, the parties’

7

counsel may retain any attorney work product they have created which

8

incorporates designated material on the condition that they will maintain the

9

confidentiality of such material and will not use such material in
contravention of the provisions of this Revised First Amended Stipulated

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

Protective Order.

12

26. Nothing in this Revised First Amended Stipulated Protective Order

13

shall be construed as an admission as to the relevance, authenticity,

14

foundation, or admissibility of any Protected Information.

15

27. Nothing in this Revised First Amended Stipulated Protective Order

16

shall be construed to supersede other protective orders entered in this matter.

17

To the extent that certain information is subject to other protective orders

18

entered in this matter and also qualifies as “CONFIDENTIAL” or “HIGHLY

19

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” Protected Information

20

pursuant to paragraphs 7 and 8 of this Revised First Amended Stipulated

21

Protective Order, such information shall be governed and protected by all

22

applicable protective orders. In addition, nothing in this Revised First

23

Amended Stipulated Protective Order shall be construed to restrict the ability

24

of any party or non-party to seek an order from this Court imposing further

25

restrictions on the dissemination of “CONFIDENTIAL” or “HIGHLY

26

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” Protected Information, or

27

seek to rescind, modify, alter, or amend this Revised First Amended

28

Stipulated Protective Order with respect to specific information. To the
00040778.DOC

19

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

extent that a conflict arises concerning the treatment and level of protection afforded

2

to certain information that is subject to different protective orders, such information

3

shall be governed and treated in accordance with the narrowest protective order

4

affording the most stringent protections for such information.
28. Nothing in this Revised First Amended Stipulated Protective Order shall

5
6

bar or otherwise restrict any attorney herein from rendering legal advice to a party in

7

this case, so long as information subject to a HIGHLY CONFIDENTIAL –

8

ATTORNEYS’ EYES ONLY designation is not revealed.
29. Nothing in this Order abridges the right of any person to seek its

9

modification by the Court in the future.
30. This Revised First Amended Stipulated Protective Order shall apply to all

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

12

new parties added to this action, including, but not limited to, Technation, Inc.

13

and/or 2uTEC, LLC, if so added.
31. By the signature of their undersigned attorneys, the Parties and their

14
15

counsel stipulate that they will be bound by the foregoing provisions and further

16

stipulate that this Revised First Amended Stipulated Protective Order may be

17

signed, filed and entered by the Court.
32. The Parties have met and conferred in good faith about the scope and

18
19

terms of this Revised First Amended Stipulation for Protective Order. The Parties

20

have agreed to this Statement of Good Cause for the sole purpose of entering into

21

///

22

///

23

///

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///

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///

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///

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///

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///
00040778.DOC

20

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

this Revised First Amended Stipulation for Protective Order; the Statement of Good

2

Cause shall be inadmissible for any other purpose.

3

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
LAW OFFICE OF HENRY B. LA TORRACA

4
5
6

DATED: February 8, 2017

By: /s/ - Henry B. LaTorraca
HENRY B. LA TORRACA
Attorneys for Plaintiff and Counterclaim
Defendant Netecs Corporation, a
California corporation; and Counterclaim
Defendants Jeffery Tooley and Chris
Tooley

7
8
9

RAINES FELDMAN, LLP

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

12
13

DATED: February 8, 2017

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15
16

By: /s/ - Scott M. Lesowitz
Scott M. Lesowitz
Attorneys for Defendant and
Counterclaimant Damon McClure

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

17
18

DATED:______________________
February 17, 2017

19

___________________________________
Hon. Kenly Kiya Kato
United States Magistrate Judge

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00040778.DOC

21

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ____________________________________________________________

3
4

[print or type full name], of __________________________________________

5

[print or type full address], declare under penalty of perjury under the laws of the

6

United States of America and of the State in which this document is executed that I

7

have read in its entirety and understand the Revised First Amended Stipulated

8

Protective Order that was issued by the United States District Court for the Central

9

District of California on ________________________________[date] in the case of
Netecs Corporation v. Damon McClure, et al. pending in the United States District

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

Court for the Central District of California, Eastern Division, case No. 5:16-cv-

12

02452 JGB (KKx)
I agree to comply with and to be bound by all the terms of this Revised First

13
14

Amended Stipulated Protective Order and I understand and acknowledge that failure

15

to so comply could expose me to sanctions and punishment in the nature of

16

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

17

information or item that is subject to this Revised First Amended Stipulated

18

Protective Order to any person or entity except in strict compliance with the

19

provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court

20
21

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

22

Revised First Amended Stipulated Protective Order, even if such enforcement

23

proceedings occur after termination of this action. I hereby appoint

24

_____________________________ [print or type full name] of

25

_________________________________________ [print or type full address and

26

telephone number] as my California agent for service

27

///

28

///
00040778.DOC

22

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

1

of process in connection with this action or any proceedings related to enforcement

2

of this Revised First Amended Stipulated Protective Order.

3

I declare under penalty of perjury under the laws of the United States of

4

America and the State in which this document is executed that the foregoing is true

5

and correct.

6
7

Executed on _______________________, at
___________________________________ (City and State where sworn and signed

8
9

Printed name: _______________________________

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

Signature: __________________________________

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13
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16
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00040778.DOC

23

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER

PROOF OF SERVICE

1

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

2
3

I am employed in the County of Los Angeles, State of California. I am over

4

the age of 18 and not a party to the within action; my business address is Law Office

5

of Henry B. LaTorraca, 400 Oceangate, Suite 700, Long Beach, CA 90802. My

6

electronic mail address is [e-mail].

7
8
9

11
400 Oceangate, Suite 700
Long Beach, CA 90802-4306
[phone]

LAW OFFICE OF HENRY B. LA TORRACA

10

On February 8, 2017, I served the documents described as:
REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER
on the parties in this action by this Court’s CM/ECF electronic filing and
service pursuant to Local Rule 5-3.3.3 as follows:

12

15

Eric S. Syverson
Scott M. Lesowitz
RAINES FELDMAN, LLP
9720 Wilshire Blvd., 5th Floor
Beverly Hills, CA 90212

16

[e-mail]

13
14

17

[e-mail]

18
19
20
21
22

Attorneys for Defendant and
Counterclaimant
Damon McClure

I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed on February 8, 2017, at Long Beach, California.

23

/s/ - Henry B. LaTorraca

24

Henry B. LaTorraca

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26
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00040778.DOC

24

REVISED FIRST AMENDED STIPULATED PROTECTIVE ORDER