Roadrunner Transportation Services Inc v. John Tarwater et al

Filing 38

STIPULATED PROTECTIVE ORDER by Magistrate Judge Marc L. Goldman, re Stipulation for Protective Order 37 : IT IS ORDERED THAT: 1) Any Party producing material or information in this matter (Producing Party) may designate such material or information a s "Confidential" or "Attorneys Eyes Only" in which case such material or information shall be treated in accordance with the terms of this Protective Order. 15) All documents of any nature that are filed with the Court for any pur pose and that contain Confidential or Attorneys Eyes Only information shall be filed in sealed envelopes or other sealed containers that are marked with the caption of the litigation, that identify each document and thing contained therein and that bear a statement substantially in the following form: (See document for further details.) (rla)

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SANTA MONICA

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GREGORY S. GLAZER, Bar No. 172197
[e-mail]
ROBERT R. FLEMER, Bar No. 228946
[e-mail]
CURIALE HIRSCHFELD KRAEMER LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
Telephone: [phone]
Facsimile: [phone]
ERIC H. RUMBAUGH, (pro hac vice)
Wisconsin Bar No. 1036104
[e-mail]
AMY O. BRUCHS (pro hac vice)
Wisconsin Bar No. 1021530
[e-mail]
MICHAEL BEST & FRIEDRICH LLP
100 E. Wisconsin Ave., Suite 3300
Milwaukee, WI 53202-4108
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff ROADRUNNER
TRANSPORTATION SERVICES, INC.
JAMES T. JACKSON, Bar No. 153587
[e-mail]
JENNIFER L. McCLAIN, Bar No. 255834
[e-mail]
MERHAB ROBINSON & JACKSON P.C.
1551 N. Tustin Avenue, Suite 910
Santa Ana, CA 92705-8639
Telephone: [phone]
Facsmile: [phone]
Attorneys for Defendant
JOHN TARWATER

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
Case No. SACV 10-1534-AG (MLGx)
ROADRUNNER
TRANSPORTATION SERVICES,
STIPULATED PROTECTIVE
INC.,
ORDER
Plaintiff,

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vs.

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JOHN TARWATER, and DOES 1
through 20, inclusive,

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Defendants.

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Upon stipulation of counsel for the Parties, and it appearing to the Court that
a Protective Order under Rule 26(c) of the Federal Rules of Civil Procedure is
necessary and appropriate and will facilitate discovery,
IT IS HEREBY ORDERED THAT:
1.

Any Party producing material or information in this matter

(“Producing Party”) may designate such material or information as “Confidential”
or “Attorney’s Eyes Only” in which case such material or information shall be
treated in accordance with the terms of this Protective Order.
2.

The term “Confidential” may be applied only to material or

information not known to the general public that is produced in this litigation by a
Producing Party to any other Party (“Receiving Party”), that is: (a) financial
information such as margins, revenues, costs, etc.; (b) pricing plans and strategies;
(c) information related to customers or prospective customers, including customer
lists and reports and documents that reveal a customer's identity, (d) third-party
agreements and the terms thereof; (e) research and development information; (f)
business plans and methods; (g) personnel information regarding employees and
prospective employees; and (h) information that the Producing Party is obligated to
treat as confidential by law or contract.
3.

The term “Attorney’s Eyes Only” may be applied only to: (a)

mathematical algorithms, including software code; (b) passwords; (c) pending or
abandoned patent applications; (d) information regarding future products and past
and future business strategies; (e) trade secrets, including but not limited to product
formulations and manufacturing processes; (f) any Confidential Information that is
particularly sensitive commercial or proprietary information within meaning of
Federal Rule of Civil Procedure 26(c)(1) and which the Producing Party reasonably
believes cannot be produced between competitors, even with the label “Confidential

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Information”; and (g) information that must be limited to the eyes of attorneys only,
as a result of law or third party contract.
4.

Any document or portion thereof that a Producing Party believes to

contain Confidential or Attorney’s Eyes Only information shall be so designated by
stamping or otherwise applying on each page containing Confidential or Attorney’s
Eyes Only information the designation “Confidential” or “Attorney’s Eyes Only,”
or by identifying the information as “Confidential” or “Attorney’s Eyes Only”
when producing documents electronically, in which case such designated document
and the information contained therein shall be treated in accordance with the terms
of this Protective Order. This Protective Order does not confer blanket protections
on all disclosures or responses to discovery and the protection it affords extends
only to the specific information or items that are entitled to protection under the
applicable legal principles for treatment as confidential. By designating material as
Confidential Information, counsel producing such material is certifying to the Court
that the material is entitled to confidentiality protection under Fed. R. Civ. P. 26
and the terms of this Protective Order. If any Party wishes to remove the Attorney’s
Eyes Only designation, counsel shall meet and confer in good faith regarding same.
If counsel are unable to agree, they shall refer the matter to the Court for resolution.
5.

All Confidential or Attorney’s Eyes Only information not reduced to

documentary, tangible, or physical form or which cannot be conveniently
designated pursuant to Paragraph 4 shall be designated by the Producing Party by
informing all Receiving Parties in writing.
6.

All Qualified Persons shall have access to Confidential Information as

set forth herein. “Qualified Person,” as used herein, is limited to the following
categories of persons:
a.

any attorney appearing of record or of counsel in this case, other than

in-house counsel, together with other attorneys at the firm(s) of counsel of record,

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and their employees including paralegal, secretarial, photocopying, document
imaging, data entry, data processing, drafting, graphics, stenographic reporting, or
clerical personnel;
b.

subject to the conditions set forth in paragraphs 10 and 11, any

independent technical or financial expert, independent consultant, or independent
testing personnel and their employees serving any attorneys identified in Paragraph
6(a) for the purposes of this case, who shall first have executed the
UNDERTAKING annexed hereto as Exhibit A;
c.

any independent paralegal, secretarial, photocopying, document

imaging, data entry, data processing, drafting, graphics, stenographic reporting or
clerical personnel serving such attorneys identified in Paragraph 6(a) for the
purposes of this case;
d.

any court reporter or videographer employed or retained by a party for

the purposes of transcribing and/or recording a deposition or inspection of
premises;
e.

the Court and its personnel;

f.

any person indicated on the face of a document as having written or

received such document during the course of his or her employment or consultancy;
and, at trial or deposition, any current or former employee of the Producing Party
(“Witness”), provided that the Producing Party’s document was written or received
prior to or during the Witness’s period of employment;
g.

non-technical jury or trial consulting services retained by outside

counsel, who shall first have executed the UNDERTAKING annexed hereto as
Exhibit A ; and
h.

the named parties and their employees.

7.

No other person shall become a Qualified Person without prior leave

of Court or prior written consent of the Producing Party. Documents, testimony or

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information designated by a Producing Party as “Confidential information” may be
disclosed and copies may be provided by the Receiving Party only to Qualified
Persons as specified in paragraph 6(a) through (h), shall be retained by them in
strictest confidence, shall only be used for the purpose of preparation for and trial of
this action (including appeals), and shall not be disclosed to any person not
specified in paragraph 6 without the prior written consent of the Producing Party or
of the Court. All Confidential information obtained by a Qualified Person shall be
carefully maintained so as to preclude access by anyone who is not a Qualified
Person.
8.

Documents, testimony or information designated by a Producing Party

as “Attorney’s Eyes Only” may be disclosed and copies may be provided by the
Receiving Party only to Qualified Persons as specified in paragraph 6(a) through
(g), shall be retained by them in strictest confidence, shall only be used for the
purpose of preparation for and trial of this action (including appeals), and shall not
be disclosed to any person not specified in paragraph 6(a) through (g) without the
prior written consent of the Producing Party or of the Court. All Attorney’s Eyes
Only information obtained by a Qualified Person under paragraph 6(a) through (g)
shall be carefully maintained so as to preclude access by anyone who is not a
Qualified Person under paragraph 6(a) through (g).
9.

Except as otherwise agreed to by the parties, Confidential or

Attorney’s Eyes Only information may not be used in, or to form the basis for, any
other proceeding or litigation. However, if such information is obtained
independently it may be used for any reason in any future proceeding or litigation.
Confidential or Attorney’s Eyes Only information may be disclosed in response to a
lawful subpoena issued in connection with grand jury proceedings, other criminal
proceedings, or in civil proceedings, but only if notice and a copy of the subpoena
are provided to the Producing Party by facsimile transmission or overnight mail at

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least five (5) business days in advance of such anticipated disclosure or, if the
subpoena requires production of such documents in less than five days, as soon as
reasonably possible. Should the person seeking access to Confidential or
Attorney’s Eyes Only information take action against the Receiving Party or
anyone else covered by this Protective Order to enforce such a subpoena, demand
or other legal process, the Receiving Party shall respond, at a minimum, by setting
forth the existence of this Protective Order. Nothing herein shall be construed as
requiring the Receiving Party or anyone else covered by this Protective Order to
challenge or appeal any order requiring production of Confidential or Attorney’s
Eyes Only information covered by this Protective Order, or to subject itself to any
penalties for noncompliance with any legal process or order, or to seek any relief
from this Court.
10.

All Qualified Persons, other than those designated in paragraphs 6(a),

(c), (d), (e), and (f), shall be given a copy of this Protective Order prior to being
shown any Confidential or Attorney’s Eyes Only information. Each such person,
prior to having access to said Confidential or Attorney’s Eyes Only information,
shall execute the UNDERTAKING annexed hereto as EXHIBIT A and thereby
agree not to disclose any Confidential or Attorney’s Eyes Only information to
anyone who is not a Qualified Person, shall agree not to make use of any such
Confidential or Attorney’s Eyes Only information other than for the purposes of
this litigation, and shall agree to be subject to the jurisdiction of the United States
District Court for the Central District of California with respect to any issue arising
out of this Protective Order.
11.

Before Confidential or Attorney’s Eyes Only information is disclosed

to any proposed Qualified Person identified in Paragraphs 6(b) or (g), the Party
seeking to disclose that information shall notify all Producing Parties in writing of
the identity of the proposed Qualified Person and provide the proposed Qualified

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Person’s executed UNDERTAKING and curriculum vitae by facsimile. No
Confidential or Attorney’s Eyes Only information may be shown to any proposed
Qualified Person under 6(b) or (g) so identified for four (4) business days following
receipt by all Producing Parties of such notice. If a Producing Party objects to
disclosure of Confidential or Attorney’s Eyes Only information to that proposed
Qualified Person within that four (4) business day period, for reasonable cause set
forth in writing, the parties shall thereafter attempt in good faith to resolve the
objection. Should the parties be unable to resolve the objection, the objecting party
shall file a motion for an Order that access to Confidential or Attorney’s Eyes Only
information be denied to such proposed Qualified Person. Failure to file a motion
within five (5) business days after such Producing Party’s receipt of the notification
of the objection shall be deemed approval, and such proposed Qualified Person
shall thereafter be qualified to have access to the Confidential or Attorney’s Eyes
Only information pursuant to the terms and conditions of this Protective Order.
The proposing party shall not disclose any Confidential or Attorney’s Eyes Only
information to proposed Qualified Persons during the period for objection nor
during the pendency of any motion filed in accordance with this paragraph. No
Party shall use its right to object to a proposed Qualified Person to interfere with
the ability of the other Party to reasonably prepare for trial, and consent to the
disclosure of information to proposed Qualified Persons shall not unreasonably be
withheld.
12.

In the event that counsel for a Party deems it necessary to disclose any

Confidential or Attorney’s Eyes Only information of a Producing Party to any
person not specified as a Qualified Person, said counsel shall notify counsel for the
Producing Party in writing of (a) the information or documents to be disclosed, (b)
the person(s) to whom such disclosure is to be made, and (c) the reason(s) for such
disclosure, and shall attempt to reach agreement regarding such disclosure. If

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agreement cannot be reached, the Party wishing to make such disclosure shall file
an appropriate motion with the Court. In the event of such motion, the Court shall
rule as to whether such disclosure may be made at all and, if so, whether any
restriction or limitation shall be placed on such disclosure.
13.

Should any Confidential or Attorney’s Eyes Only information be

disclosed, through inadvertence or otherwise, to any person not authorized pursuant
to the terms of this Protective Order, the disclosing party shall (a) use its best
efforts to obtain the return of any such Confidential or Attorney’s Eyes Only
information; (b) promptly inform such person of all provisions of this Protective
Order; (c) identify such person immediately in writing to the Party or third party
that designated the Confidential or Attorney’s Eyes Only information; and (d)
request such person to sign an UNDERTAKING in the form attached hereto as
EXHIBIT A. The executed UNDERTAKING shall promptly be served upon
counsel of record for the Party or upon the third party that designated the
Confidential or Attorney’s Eyes Only information. Execution of an
UNDERTAKING under such circumstances shall in no way serve to convert the
person signing such UNDERTAKING into a Qualified Person.
14.

Counsel for a Producing Party may redact specific material which the

Producing Party believes, in good faith, is subject to the attorney-client privilege,
work product immunity, or other legally cognizable privilege or immunity.
Counsel for a Producing Party may also redact information which would qualify for
protection as Attorneys Eyes Only confidential, but which is irrelevant to any issue
in this case and not reasonably calculated to lead to the discovery of relevant
evidence. The deletion of all material redacted shall be clearly indicated by visibly
marking the document with the word “REDACTED” or with a solid black line
where material has been deleted. Both parties reserve the right to challenge any
redactions made by the Producing Party.

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15.

All documents of any nature that are filed with the Court for any

purpose and that contain Confidential or Attorney’s Eyes Only information shall be
filed in sealed envelopes or other sealed containers that are marked with the caption
of the litigation, that identify each document and thing contained therein and that
bear a statement substantially in the following form:

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or

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C URIALE H IRSCHFELD K RAEMER LLP

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FILED UNDER SEAL
CONTAINS CONFIDENTIAL INFORMATION
SUBJECT TO A PROTECTIVE ORDER
This envelope contains Confidential information
and is not to be opened, nor the contents thereof
displayed or revealed, except by order of the Court.

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FILED UNDER SEAL
CONTAINS CONFIDENTIAL INFORMATION – ATTORNEY’S EYES
ONLY
SUBJECT TO A PROTECTIVE ORDER
This envelope contains Confidential information
and is not to be opened, nor the contents thereof
displayed or revealed, except by order of the Court.
16. With respect to any deposition or testimony, a Party may designate as
“Confidential” or “Attorney Eyes Only,” those portions of a transcript (including
exhibits) that the Party believes in good faith merit protection under this Protective
Order by any one of the following means:
(a) Stating orally on the record of a deposition what portion of information,
exhibits, or testimony is to be so designated; or
(b) Sending written notice to the opposing Party and the court reporter within
fourteen calendar days of service of the deposition transcript (or of notification by
the court reporter that the transcript is available) designating those portions of the
transcript to be so designated.

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17.

Nothing in this Protective Order shall preclude any party

representative(s), including but not limited to persons identified under Paragraph 6
of this Protective Order, from either side from attending a deposition. If and when
any Confidential and/or Attorneys Eyes Only information is disclosed in
deposition, and provided that such party representative(s) do not have authority to
view such information under this Protective Order, the party representative shall
leave the deposition for as long as the Confidential and/or Attorneys Eyes Only
information is being discussed.
18.

If Confidential or Attorney’s Eyes Only information is to be the

subject of examination in deposition of a non-party witness who is not a Qualified
Person, the following procedures shall apply. Confidential or Attorney’s Eyes Only
information shall not be provided to any such person without the Producing Party’s
prior written consent or oral consent during a deposition on the record, or without
permission by the Court upon motion and notice. Confidential or Attorneys Eyes
Only information shall not be disclosed unless and until the non-party witness has
signed the UNDERTAKING attached as Exhibit A.
19.

Confidential information does not include any document or

information that is: (a) publicly known through no unauthorized act of such Party;
(b) lawfully obtained by the Party other than through discovery of the Producing
Party unless the party is already bound by an agreement not to disclose such
information; or (c) advertising materials. Nothing in this Protective Order shall
limit any Party's use of its own documents or shall prevent any Party from
disclosing its own information to any person. Should a dispute arise as to any
specific information or material, the burden shall be upon the Party claiming that
such information or material is or was publicly known or was lawfully obtained
other than through discovery of the Producing Party.

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20.

Nothing herein shall prevent any Party from contending, during the

progress of this litigation, that any or all material or information designated
“Confidential” or “Attorney’s Eyes Only” is not, in fact, confidential. Grounds for
such a contention may include that such designated Confidential or Attorney’s Eyes
Only information is or was publicly known at or prior to disclosure thereof in this
litigation, that such designated Confidential or Attorney’s Eyes Only information,
after disclosure thereof, has become public knowledge as a result of lawful
publication by an independent source who obtained the information lawfully, that
such designated Confidential or Attorney’s Eyes Only information was previously
known by the Receiving Party, or that such designated Confidential or Attorney’s
Eyes Only information was later obtained in good faith by the Receiving Party from
an independent source who obtained the information lawfully. Any Party may
request any Producing Party that designated information as Confidential or
Attorney’s Eyes Only information to remove that designation. Such a request shall
be in writing, stating the grounds therefor, and shall be served on counsel for the
Producing Party who designated the information as Confidential or Attorney’s Eyes
Only information. The requested change shall occur unless, within ten (10)
calendar days after service of such notice, an objection for good cause is served on
the Party requesting removal of the Confidential or Attorney’s Eyes Only
information designation. That objection may thereafter be resolved by agreement
or by the Court. The Producing Party shall have the burden of establishing the need
for maintaining the “Confidential” or “Attorney’s Eyes Only” designation.
21.

Nothing in this Protective Order shall require a Party to challenge the

propriety of any “Confidential” or “Attorney’s Eyes Only” designation at the time
such designation is made, and failure to do so shall not preclude a subsequent
challenge thereto.

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22.

Notwithstanding the parties’ designation of “Confidential” or

“Attorney’s Eyes Only” documents, testimony or information, any Court hearing
that refers to or describes “Confidential” or “Attorney’s Eyes Only” documents,
testimony or information may be held in open court with records unsealed,
provided the Producing Party is afforded reasonable notice of the Receiving Party’s
intent to disclose such documents, testimony or information in open court, so that
the confidentiality of such documents, testimony or information can be protected.
However, any party may request or the Court may order that the portion of such
proceeding where use thereof is to be made be held in camera with access thereto
limited to Qualified Persons under this Protective Order. To the extent that the
Court grants any such request, such Confidential or Attorney’s Eyes Only
information shall continue to be treated in accordance with the terms of this
Protective Order.
23.

(a)

The inadvertent or unintentional failure by a Producing Party to

designate specific documents or information as containing Confidential or
Attorney’s Eyes Only information shall not be deemed a waiver in whole or in part
of the Producing Party’s claim of confidentiality as to such documents or
information. Upon notice of such failure to designate, all Receiving Parties shall
cooperate to restore the confidentiality of the inadvertently disclosed documents or
information, without prejudice.
(b)

Per Fed. R. Civ. P. 26(b)(5), if a Producing Party produces any

document or information that it believes is immune from discovery pursuant to any
attorney-client privilege, attorney work product immunity or any other privilege or
immunity from production, such production shall not be deemed a waiver, and the
Producing Party may give written notice to all Receiving Parties that the document
or information so produced is deemed privileged and that return of the document or
information is requested. Upon receipt of such written notice, all Receiving Parties

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shall immediately undertake to gather the original and all copies of the document or
information and shall immediately return the original and all such copies to the
Producing Party or certify in writing the destruction thereof. Return of such
documents or information to the Producing Party shall not preclude any Receiving
Party from later moving to compel production of the returned documents or
information.

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24.

Making documents or other information available for inspection shall

not, by itself, constitute a waiver by the Producing Party of any claim of
confidentiality, but delivery of documents and things to a Receiving Party without
designating such as Confidential or Attorney’s Eyes Only information shall not
constitute a waiver of any claim of confidentiality if such inadvertence or mistake is
thereafter brought to the attention of the Receiving Party promptly after discovery
by the Producing Party. Upon such notice, the Receiving Party shall, at the election
of the Producing Party, re-mark the documents and things with the appropriate level
of confidentiality or return said documents and things and not retain copies thereof
for replacement by appropriately marked documents and things. Any summaries or
notes of the inadvertently produced documents or things shall be treated as
Confidential or Attorney’s Eyes Only information, as designated by the Producing
Party.
25.

The terms of this Protective Order shall be applicable to any third

party that produces information that is designated by such third party or by a party
hereto as Confidential or Attorney’s Eyes Only information.
26.

On final determination of this litigation, each Party and other person

subject to the terms hereof shall, within sixty (60) calendar days, assemble and, at
its option, destroy or return to the Producing Party all materials, documents and
things constituting Confidential or Attorney’s Eyes Only information, all copies,
summaries and abstracts thereof and all other materials, memoranda or documents

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constituting or containing Confidential or Attorney’s Eyes Only information. If
destroyed, such party or person shall certify to the Producing Party, within sixty
(60) calendar days, the destruction of all such materials. Outside counsel for each
Party may retain archive copies of pleadings, motion papers, written discovery
responses, in addition to one set of documents produced by any Party or non-party
and correspondence that include Confidential or Attorney’s Eyes Only information.
27.

This Protective Order shall survive the termination of this litigation.

28.

Nothing in this Protective Order shall prevent any Party from applying

to the Court for additional protection, for example, for particularly highly sensitive
materials or information, such as technical, planning, manufacturing, marketing,
and research and development materials and information relating to product
development, that the Producing Party believes require such protection.
29.

Nothing in this Protective Order shall be construed as a waiver by any

Party of its right to object to the subject matter of any request for production of
documents in this action, nor as a waiver by any other Party of the first Party’s
obligation to make proper response to discovery requests.
30.

Nothing in this Protective Order shall be construed as a waiver by any

Party of any objections that might be raised as to admissibility at trial of any
evidentiary materials.
31.

It is not the intent of the Parties, nor of the Court, that an attorney or

law firm that acquires knowledge of, or is given access to, Confidential or
Attorney’s Eyes Only information pursuant to this Protective Order should thereby
be disqualified from other representations adverse to the Producing Party solely
because of such knowledge or access.
32.

Any Party may, on motion for good cause shown, seek a modification

of this Protective Order. No modification of this Protective Order that adversely
affects the protection of any document produced or given by a non-party in this

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case shall be made without giving to that non-party appropriate notice and
opportunity to be heard by the Court.
35.

Nothing in this Protective Order shall prevent or otherwise restrict

counsel from rendering advice to their clients and, in the course thereof, relying
generally on examination of information designated under the terms of the
Protective Order; provided however, that rendering such advice and otherwise
communicating with such clients, counsel shall not make specific disclosure of any
item so designated.

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IT IS SO ORDERED:
Dated: July 25, 2011

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SANTA MONICA

ATTORNEYS AT LAW

C URIALE H IRSCHFELD K RAEMER LLP

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MARC L. GOLDMAN
United States Magistrate Judge

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EXHIBIT A

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I acknowledge that I have read, understand, and agree to the terms of this Protective
Order. I agree that I shall be subject to the jurisdiction of the United States District
Court for the Central District of California with respect to any issue arising out of
this Protective Order.

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Print Name

Date

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Signature

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SANTA MONICA

ATTORNEYS AT LAW

C URIALE H IRSCHFELD K RAEMER LLP

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X:\CLIENTB\081062\0271\A4186400.doc

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