TMobile West Corporation v. City of Huntington Beach et al

Filing 104

PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 102 ; See order for details. (jy)

MARTIN L. FINEMAN (CA State Bar No. 104413)
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Attorneys for Plaintiff
T-Mobile West Corporation
JENNIFER MCGRATH, City Attorney (CA State Bar No. 179917)
SCOTT F. FIELD, Assistant City Attorney (CA State Bar No. 105709)
Box 190, 200 Main Street
Huntington Beach, California 92648
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Attorneys for Defendants
CITY OF HUNTINGTON BEACH and
CITY COUNCIL OF THE CITY OF
HUNTINGTON BEACH

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
T-MOBILE WEST CORPORATION, a )
Delaware corporation,
)
)
Plaintiff,
)
)
vs.
)
)
CITY OF HUNTINGTON BEACH, a
)
public entity organized and existing under )
the laws of the State of California; CITY )
COUNCIL OF THE CITY OF
)
HUNTINGTON BEACH,
)
)
Defendants.
)

Case No. CV-10-1471 RGK (SSx)
[Discovery Document: Referred to
Magistrate Judge Suzanne H. Segal]
[PROPOSED] PROTECTIVE
ORDER
Second Amended Complaint filed
January 18, 2011

Having reviewed the Stipulation Regarding Protective Order between the City
of Huntington Beach (the “City” or “Defendant”) and T-Mobile West Corporation
(“T-Mobile” or “Plaintiff”), and good cause appearing,
IT IS HEREBY ORDERED as follows:
This proposed protective order (the “Protective Order”) shall govern the
1
[PROPOSED] PROTECTIVE ORDER
Case No. CV-10-1471 RGK (SSx)
DWT 18917133v1 0048172-000388

T-MOBILE V. CITY OF HUNTINGTON BEACH, ETC. ET AL

production or disclosure of any record or information designated as “Confidential
Information” and produced by the Parties or their agents during the course of
discovery, pretrial proceedings, or trial in this suit, including all designated
deposition testimony, all designated testimony taken at a hearing or other
proceeding, interrogatory answers, documents and other discovery materials,
whether produced informally, in response to interrogatories, requests for admissions,
requests for production of documents, or any other formal method of discovery. In
addition, the Parties contemplate that Confidential Information may be produced by
a non-party. This Protective Order also shall govern any designated record or
information produced in this action pursuant to disclosures required under any
applicable Federal Rule of Civil Procedure or Central District of California Local
Rule and any supplementary disclosures thereto.
1.

DESIGNATION

The City has sought production of documents regarding the performance and
coverage of T-Mobile’s wireless telecommunications system, including the
following categories of materials:
(1)

T-Mobile’s Daily Reports on Dropped Calls, Blocked Calls and System
Accessibility for the area of the City of Huntington.

(2)

The Antenna and Sector Site Maps for the City of Huntington Beach.

(3)

The number of T-Mobile subscribers within the City of Huntington
Beach.

(4)

The “Drive Tests” and related system performance reports prepared by
T-Mobile’s consultants.

(5)

Documents regarding the “propagation models” and drive tests
T-Mobile employs for predicting system performance.

(6)

“Radio Frequency Design Guidelines” and similar reports issued by the
Field Service Center of T-Mobile.

(7)

Reports regarding potential antenna locations serving the City of

Huntington Beach.
(8)

Documents containing “trade secrets, confidential research,
development, or commercial information” within the meaning of Rule
26(c), which pertain to T-Mobile’s decision-making with respect to its
wireless facilities and coverage area.

(9)

Financial and technological methodologies for evaluating and selecting
sites.

Plaintiff may designate as “CONFIDENTIAL” any discovery within the
above categories. Any Confidential Information shall be clearly marked
“CONFIDENTIAL” prior to production, or subsequent to selection for copying (i.e.,
in cases where Confidential Information is made available for review prior to
production), but prior to the actual copying.
If it comes to T-Mobile’s attention that information or items that it designated
for protection does not qualify for protection at all, or does not qualify for the level
of protection initially asserted, T-Mobile must promptly notify all other Parties that
it is withdrawing the mistaken designation.
2.

NOTICE AND MARKINGS

Any documents, material or information may be designated
“CONFIDENTIAL” by stamping each page in such manner that the written matter
is not obliterated or obscured.
T-Mobile may designate any portion or all of a deposition as Confidential
Information by notifying the City on the record during the deposition or in writing
within five (5) business days of the receipt of the transcript. The Parties shall
automatically treat all information disclosed at a deposition as CONFIDENTIAL for
five (5) business days after receipt of the transcript.
3.

INADVERTENT FAILURE TO DESIGNATE

Failure to designate or stamp as CONFIDENTIAL at the time of production
shall not be a waiver of the protection for Confidential Information provided that

counsel promptly notifies the receiving party upon realizing the failure. However,
the receiving party shall not be in violation of this Protective Order for any
disclosure of information made before receiving such notice.
4.

OBJECTION TO DESIGNATION

The City may object to the designation of any material as Confidential
Information at any time. If the City objects to T-Mobile’s designation of
Confidential Information, then the Parties shall meet and confer pursuant to Rule
26(c). If the Parties cannot resolve the City’s objections, then T-Mobile shall apply
promptly to the Court for a protective order. Until the Court rules on T-Mobile’s
motion, the City shall treat the information as Confidential Information. On any
motion for a protective order, T-Mobile shall bear the burden of justifying the
Confidential Information designation.
5.

USE OF CONFIDENTIAL INFORMATION

All Confidential Information as defined herein shall be used solely for the
purpose of this action and shall not be used for any other purpose. Confidential
Information that has been designated “CONFIDENTIAL” shall be disclosed only to:
(1)

The attorneys of record in this action and their employees or
contractors (such as photocopy services) who are assisting them in this
action;

(2)

In-house counsel for each party;

(3)

Independent Experts, and graphics, design, jury consultant or focus
group Consultants who have been retained by the City or its attorneys
for this action and which the City has disclosed in writing to T-Mobile,
provided that each Independent Expert and Consultant shall first sign a
copy of this Protective Order, which shall be deemed to acknowledge
notice and consent to the terms of this Protective Order, and consent to
the continuing jurisdiction of the Court for the purposes of enforcing
and remedying any violations of this Order. Each Party’s counsel shall

maintain a copy of the Protective Order signed by such individuals, and
a copy of which shall be furnished to the opposing party immediately
after signing. Counsel shall take all steps reasonably necessary to
prevent the unauthorized disclosure of such Confidential Information;
(4)

Officers, directors, or employees of the Parties who require the
information to assist in or evaluate this action;

(5)

The Court and persons associated with or employed by the Court whose
duties require access to the information;

(6)

The author of the document and any person identified as a recipient of
the document on its face as well as any employee or former employee
of the designating party;

(7)

The officer taking, reporting or videotaping a deposition and employees
of such officer to the extent necessary to prepare the transcript of the
deposition; and

(8)

(8)

Other persons, as agreed to in writing or on the record by all

Parties, to whom counsel seeking agreement in good faith believes it is
necessary to disclose such Confidential Information in order to prepare
for trial.
6.

RELATED DOCUMENTS

Documents and information designated as CONFIDENTIAL shall include (a)
all copies, extracts and complete or partial summaries prepared from such
documents or information; (b) portions of deposition transcripts and exhibits thereto
that contain or reflect the content of any such documents, copies, extracts, or
summaries; (c) portions of briefs, memoranda or any other writing filed with the
Court and exhibits thereto that contain or reflect the content of any such documents,
copies, extracts, or summaries; (d) designated deposition testimony; and (e)
designated testimony taken at a hearing or other proceedings.

7.

CONFIDENTIAL INFORMATION SUBMITTED TO COURT

At such time as the Parties file pleadings, motions or exchange exhibits prior
to trial, T-Mobile and the City shall identify those pleadings, motions and exhibits
which are or include Confidential Information. Confidential Information filed with
the Court prior to trial, as well as pleadings which disclose Confidential
Information, shall be filed as redacted copies of such documents, pleadings, or
memoranda to be placed in the public record except as required by the Court. Nonredacted copies shall be lodged under seal, to the extent permitted by the Court.
8.

CONFIDENTIALITY OF PARTY’S OWN DOCUMENTS

No person may disclose, in public or private, any designated information or
documents of another party except as provided for in this Protective Order, but
nothing in this Order shall affect the right of T-Mobile to disclose to its own
officers, directors, employees, attorneys, consultants or experts, or to any other
person, information or document designated by it as CONFIDENTIAL. Such
disclosure shall not waive the protections of this Protective Order and shall not
entitle other Parties or their attorneys to disclose such information or documents in
violation of it.
9.

CONFIDENTIAL INFORMATION FROM A NON-PARTY

If any non-party is to produce any documents or information to Parties in this
action that the non-party reasonably believes contains Confidential Information, the
non-party shall have the same rights and responsibilities as the Parties to designate
documents and information as Confidential Information under this Protective Order.
10.

OBLIGATIONS OF PARTIES

Each of the Parties and their counsel of record agrees to abide by and be
bound by the provisions of this Protective Order and to use due care to see that its
provisions are known and adhered to by those under its supervision or control.
Nothing in this Protective Order shall bar counsel from rendering advice to their
client with respect to this litigation and, in the course thereof, relying upon any

Confidential Information.
11.

INDEPENDENTLY OBTAINED MATERIAL

T-Mobile shall not object on grounds of confidentiality to the use of any
document the City obtains independently from T-Mobile.
Nothing in this Order shall prevent or restrict T-Mobile’s or the City’s
counsel in any way from inspecting, reviewing, using or disclosing any nonConfidential materials. No disclosure pursuant to this paragraph shall waive any
rights or privileges of any party granted by this Order.
12.

TERMINATION OF LITIGATION

Within ninety (90) days of the Parties stipulating as to the final conclusion or
final settlement of this Action and any appeal thereof, all persons subject to the
terms of this Order shall (i) destroy or assemble and return to the producing party all
Confidential Information, and (ii) shall destroy any outlines, summaries, abstracts,
compilations, memoranda, documents and the like which constitute, embody,
contain, or disclose the contents of Confidential Information; except that Counsel
may retain one archival copy of pleadings, deposition transcripts and their exhibits,
trial transcripts and their exhibits.
The terms of this Protective Order shall survive and remain in full force and
effect after the termination of this lawsuit and the Court shall have jurisdiction over
the Parties, their attorneys, and all persons to whom Confidential Information has
been disclosed for the purpose of enforcing the terms of this Protective Order and/or
redressing any violation thereof.
It is agreed between the Parties that the “Settlement and Tolling Agreement”
regarding this Action executed on or about January 23, 2012, and the resulting
dismissal without prejudice of this Action does not constitute the final conclusion
of this Action because T-Mobile may in the future re-file this Action as to the Bolsa
View Park site. The final Termination of Litigation for purposes of this Protective
Order shall occur when the Parties stipulate that all claims regarding the Bolsa View

Park site have been adjudicated or otherwise resolved.
13.

ADDITIONAL PROTECTION

Nothing in the foregoing provisions of this Protective Order shall be deemed
to preclude any Party from seeking and obtaining, on an appropriate showing,
additional protection with respect to the confidentiality of documents or other
discovery material, or relief from this Protective Order with respect to particular
material designated hereunder.
14.

GOOD CAUSE STATEMENT

Rule 26(c) states that a court may enter a protective order, “upon good cause
shown,” “to protect a party from annoyance, embarrassment, or undue burden or
expense . . .” Rule 26(c) includes a nonexhaustive list of the kinds of information
that may be subject to such a protective order – “trade secret or other confidential
research, development, or commercial information.” Courts have long safeguarded
a party’s confidential business or technical information wherever there is a threat of
serious economic injury through protective orders. Landco Equity Partners, LLC v.
City of Colorado Springs, Colo., 259 F.R.D. 510, 515 (D. Colo. 2009) (“[P]rotective
orders . . . are common in litigation to protect sensitive information exchanged
during the course of discovery, particularly when the documents reflect confidential
financial information.”); Phillips v. Byrd, 307 F.3d 1206, 1211-12 (9th Cir. 2002)
(“[t]he law, however, gives district courts broad latitude to grant protective orders to
prevent disclosure of materials for many types of development, or commercial
information”); Motorola, Inc. v. Interdigital Tech. Corp., No. Civ.A. 93-488-LON,
1994 WL 16189689, at *2 (D. Del. Dec. 19, 1994) (“Courts dress technical
information with a heavy cloak of judicial protection because of the threat of serious
economic injury”).
T-Mobile contends and the City does not object that in the course of
discovery and presenting evidence in this case, certain documents and information
pertaining to T-Mobile’s decision-making with respect to its wireless facilities and

coverage area are likely to reveal sensitive trade secrets or other confidential
research and development within the meaning of Federal Rule of Civil Procedure
26(c) that would result in a threat of serious economic and commercial injury and
infringe on the privacy interests of third parties.
Accordingly, the Parties have stipulated to this Protective Order pursuant to
Rule 26(c) and have good cause for entry of a protective order.
IT IS SO ORDERED.
/S/
The Honorable Suzanne H. Segal
United States Magistrate Judge