SA Recycling LLC v. Express Metals Recycling

Filing 29

STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS by Magistrate Judge Jean P Rosenbluth. (See Order for details.) (wr)

1
2
3
4
5
6

David L. Hoffman, Esq., No. 143,474
Email: [e-mail]
Albert Wu, Esq., No. 228,268
Email: [e-mail]
HOFFMAN PATENT GROUP
28494 Westinghouse Place, Suite 204
Valencia, California 91355
Telephone: [phone]
Telefax: [phone]
Attorneys for Defendant,
Express Metals Recycling

7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20
21

SA Recycling LLC, a Delaware limited ) CASE NO. 12CV 01607 AG(JPRx)
)
liability company,
) Hon. Andrew J. Guilford
)
)
Plaintiff,
)
vs.
) STIPULATED PROTECTIVE
) ORDER FOR LITIGATION
Express Metals Recycling, a California ) INVOLVING PATENTS, HIGHLY
) SENSITIVE CONFIDENTIAL
business entity,
) INFORMATION AND/OR TRADE
) SECRETS
Defendant.
)
)
)
)
)
________________________________ )
)
1.

PURPOSES AND LIMITATIONS

22

Disclosure and discovery activity in this action are likely to involve

23

production of confidential, proprietary, or private information for which special

24

protection from public disclosure and from use for any purpose other than

25

prosecuting this litigation may be warranted. Accordingly, the parties hereby

26

stipulate to and petition the court to enter the following Stipulated Protective Order.

27

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

28

1

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

2

disclosure and use extends only to the limited information or items that are entitled

3

to confidential treatment under the applicable legal principles. The parties further

4

acknowledge, as set forth in Section 14.4, below, that this Stipulated Protective

5

Order does not entitle them to file confidential information under seal; Civil Local

6

Rule 79-5 set forth the procedures that must be followed and the standards that will

7

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

8

2.

9
10
11

DEFINITIONS
2.1

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

of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

12

how it is generated, stored or maintained) or tangible things that qualify for

13

protection under Federal Rule of Civil Procedure 26(c).

14
15
16

2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or

17

items that it produces in disclosures or in responses to discovery as

18

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

19

ONLY”.

20

2.5

Disclosure or Discovery Material: all items or information, regardless of

21

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

22

among other things, testimony, transcripts, and tangible things), that are produced or

23

generated in disclosures or responses to discovery in this matter.

24

2.6

Expert: a person with specialized knowledge or experience in a matter

25

pertinent to the litigation who (1) has been retained by a Party or its counsel to serve

26

as an expert witness or as a consultant in this action, (2) is not a past or current

27

employee of a Party or of a Party’s competitor, and (3) at the time of retention, is not

28

2

1

anticipated to become an employee of a Party or of a Party’s competitor (and the

2

Expert’s support staff).
2.7

3

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

4

Information or Items: extremely sensitive “Confidential Information or Items,”

5

disclosure of which to another Party or Non-Party would create a substantial risk of

6

serious harm that could not be avoided by less restrictive means.
2.8

7
8

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.9

9

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

10

to this action but are retained to represent or advise a party to this action and have

11

appeared in this action on behalf of that party or are affiliated with a law firm which

12

has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,

13
14

employees, consultants, retained experts, and Outside Counsel of Record (and their

15

support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

16
17

Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support

18
19

services (e.g., photocopying, videotaping, translating, preparing exhibits or

20

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

21

and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

22
23

designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –

24

ATTORNEYS’ EYES ONLY.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material

25
26

from a Producing Party.

27

3.

28

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

3

1

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

2

extracted from Protected Material; (2) all copies, excerpts, summaries, or

3

compilations of Protected Material; and (3) any testimony, conversations, or

4

presentations by Parties or their Counsel that might reveal Protected Material.

5

However, the protections conferred by this Stipulation and Order do not cover the

6

following information: (a) any information that is in the public domain at the time of

7

disclosure to a Receiving Party or becomes part of the public domain after its

8

disclosure to a Receiving Party as a result of publication not involving a violation of

9

this Order, including becoming part of the public record through trial or otherwise;

10

and (b) any information known to the Receiving Party prior to the disclosure or

11

obtained by the Receiving Party after the disclosure from a source who obtained the

12

information lawfully and under no obligation of confidentiality to the Designating

13

Party. Any use of Protected Material at trial and/or at any other court hearing shall be

14

governed by a separate agreement or order.

15

4.

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

16
17

imposed by this Order shall remain in effect until a Designating Party agrees

18

otherwise in writing or a court order otherwise directs. Final disposition shall be

19

deemed to be the later of (1) dismissal of all claims and defenses in this action, with

20

or without prejudice; and (2) final judgment herein after the completion and

21

exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

22

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

23

pursuant to applicable law.

24
25
26
27
28

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. To the extent it is practical to do so, the

4

1

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

2

documents, items, or oral or written communications that qualify – so that other

3

portions of the material, documents, items, or communications for which protection

4

is not warranted are not swept unjustifiably within the ambit of this Order.

5

Mass, indiscriminate, or routinized designations are prohibited. Designations

6

that are shown to be clearly unjustified or that have been made for an improper

7

purpose (e.g., to unnecessarily encumber or retard the case development process or

8

to impose unnecessary expenses and burdens on other parties) expose the

9

Designating Party to sanctions.

10

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

11

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

12

level of protection initially asserted, that Designating Party must promptly notify all

13

other parties that it is withdrawing the mistaken designation.

14

5.2

Manner and Timing of Designations. Except as otherwise provided in

15

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

16

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

17

under this Order must be clearly so designated before the material is disclosed or

18

produced.

19
20

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

21

documents, but excluding transcripts of depositions or other pretrial or trial

22

proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

23

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that

24

contains protected material. If only a portion or portions of the material on a page

25

qualifies for protection, the Producing Party also must clearly identify the protected

26

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

27

for each portion, the level of protection being asserted.

28

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

5

1

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

2

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

3

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

4

deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

5

inspecting Party has identified the documents it wants copied and produced, the

6

Producing Party must determine which documents, or portions thereof, qualify for

7

protection under this Order. Then, before producing the specified documents, the

8

Producing Party must affix the appropriate legend (“CONFIDENTIAL” or

9

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that

10

contains Protected Material. If only a portion or portions of the material on a page

11

qualifies for protection, the Producing Party also must clearly identify the protected

12

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

13

for each portion, the level of protection being asserted.

14

(b) for testimony given in deposition, that the Designating Party identify

15

on the record, before the close of the deposition, hearing, or other proceeding, all

16

protected testimony and specify the level of protection being asserted. When it is

17

impractical to identify separately each portion of testimony that is entitled to

18

protection and it appears that substantial portions of the testimony may qualify for

19

protection, the Designating Party may invoke on the record (before the deposition,

20

or other proceeding is concluded) a right to have up to 21 days to identify the

21

specific portions of the testimony as to which protection is sought and to specify the

22

level of protection being asserted. Only those portions of the testimony that are

23

appropriately designated for protection within the 21 days shall be covered by the

24

provisions of this Stipulated Protective Order. Alternatively, a Designating Party

25

may specify, at the deposition or up to 21 days afterwards if that period is properly

26

invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or

27

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

28

Parties shall give the other parties notice if they reasonably expect a deposition

6

1

or other proceeding to include Protected Material so that the other parties can ensure

2

that only authorized individuals who have signed the “Acknowledgment and

3

Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a

4

document as an exhibit at a deposition shall not in any way affect its designation as

5

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

6

ONLY.”

7

Transcripts containing Protected Material shall have an obvious legend on the

8

title page that the transcript contains Protected Material, and the title page shall be

9

followed by a list of all pages (including line numbers as appropriate) that have been

10

designated as Protected Material and the level of protection being asserted by the

11

Designating Party. The Designating Party shall inform the court reporter of these

12

requirements. Any transcript that is prepared before the expiration of a 21-day period

13

for designation shall be treated during that period as if it had been designated

14

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

15

otherwise agreed. After the expiration of that period, the transcript shall be treated

16

only as actually designated.
(c) for information produced in some form other than documentary and

17
18

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

19

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

20

the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

21

EYES ONLY.” If only a portion or portions of the information or item warrant

22

protection, the Producing Party, to the extent practicable, shall identify the protected

23

portion(s) and specify the level of protection being asserted. The terms set forth in

24

this paragraph 5.2 do not bind any future presiding judicial officer to the procedures

25

set forth herein, but continue to bind the parties absent agreement and/or court order

26

otherwise.

27
28

5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive

7

1

the Designating Party’s right to secure protection under this Order for such material.

2

Upon timely correction of a designation, the Receiving Party must make reasonable

3

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

4

Order.

5

6.

6

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

7

designation of confidentiality at any time. Unless a prompt challenge to a

8

Designating Party’s confidentiality designation is necessary to avoid foreseeable,

9

substantial unfairness, unnecessary economic burdens, or a significant disruption or

10

delay of the litigation, a Party does not waive its right to challenge a confidentiality

11

designation by electing not to mount a challenge promptly after the original

12

designation is disclosed.

13

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

14

resolution process by providing written notice of each designation it is challenging

15

and describing the basis for each challenge. To avoid ambiguity as to whether a

16

challenge has been made, the written notice must recite that the challenge to

17

confidentiality is being made in accordance with this specific paragraph of the

18

Protective Order. The parties shall attempt to resolve each challenge in good faith

19

and must begin the process by conferring directly (in voice to voice dialogue; other

20

forms of communication are not sufficient) within 10 days of the date of service of

21

notice. In conferring, the Challenging Party must explain the basis for its belief that

22

the confidentiality designation was not proper and must give the Designating Party

23

an opportunity to review the designated material, to reconsider the circumstances,

24

and, if no change in designation is offered, to explain the basis for the chosen

25

designation. A Challenging Party may proceed to the next stage of the challenge

26

process only if it has engaged in this meet and confer process first or establishes that

27

the Designating Party is unwilling to participate in the meet and confer process in a

28

timely manner. Any motion seeking the Court’s resolution of a dispute about the

8

1

terms of this protective order must comply with Local Rules 37-1 and 37-2,

2

including the Joint Stipulation provision.

3

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

4

court intervention, the Designating Party shall file and serve a motion to retain

5

confidentiality (as a motion under Civil Local Rule 7 and in compliance with Civil

6

Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or

7

within 14 days of the parties agreeing that the meet and confer process will not

8

resolve their dispute, whichever is earlier. Each such motion must be accompanied

9

by a competent declaration affirming that the movant has complied with the meet

10

and confer requirements imposed in the preceding paragraph. Failure by the

11

Designating Party to make such a motion including the required declaration within

12

21 days (or 14 days, if applicable) shall automatically waive the confidentiality

13

designation for each challenged designation. In addition, the Challenging Party may

14

file a motion challenging a confidentiality designation at any time if there is good

15

cause for doing so, including a challenge to the designation of a deposition transcript

16

or any portions thereof. Any motion brought pursuant to this provision must be

17

accompanied by a competent declaration affirming that the movant has complied

18

with the meet and confer requirements imposed by the preceding paragraph.

19

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

20

Designating Party. Frivolous challenges and those made for an improper purpose

21

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

22

expose the Challenging Party to sanctions. Unless the Designating Party has waived

23

the confidentiality designation by failing to file a motion to retain confidentiality as

24

described above, all parties shall continue to afford the material in question the level

25

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

26

court rules on the challenge. Any motion seeking the Court’s resolution of a dispute

27

about the terms of this protective order must comply with Local Rules 37-1 and 37-2,

28

including the Joint Stipulation provision.

9

7.
1

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

2

disclosed or produced by another Party or by a Non-Party in connection with this

3

case only for prosecuting, defending, or attempting to settle this litigation. Such

4

Protected Material may be disclosed only to the categories of persons and under the

5

conditions described in this Order. When the litigation has been terminated, a

6

Receiving Party must comply with the provisions of section 15 below (FINAL

7

DISPOSITION).

8
9
10

Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.

11

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

12

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

13

Receiving Party may disclose any information or item designated

14

“CONFIDENTIAL” only to:

15

(a) the Receiving Party’s Outside Counsel of Record in this action, as

16

well as employees of said Outside Counsel of Record to whom it is reasonably

17

necessary to disclose the information for this litigation and who have signed the

18

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

19

A;

20

(b) the officers, directors, and employees of the Receiving Party to

21

whom disclosure is reasonably necessary for this litigation and who have signed the

22

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

23

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

24

disclosure is reasonably necessary for this litigation and who have signed the

25

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

26

(d) the court and its personnel;

27

(e) court reporters and their staff, professional jury or trial consultants,

28

10

1

and Professional Vendors to whom disclosure is reasonably necessary for this

2

litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

3

(Exhibit A);

4

(f) during their depositions, witnesses in the action to whom disclosure

5

is reasonably necessary and who have signed the “Acknowledgment and Agreement

6

to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

7

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

8

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

9

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

10

Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

11
12

custodian or other person who otherwise possessed or knew the information.
7.3

13

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

14

ONLY” Information or Items. Unless otherwise ordered by the court or permitted in

15

writing by the Designating Party, a Receiving Party may disclose any information or

16

item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only

17

to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as

18
19

well as employees of said Outside Counsel of Record to whom it is reasonably

20

necessary to disclose the information for this litigation and who have signed the

21

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

22

A;

23

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably

24

necessary for this litigation, (2) who have signed the “Acknowledgment and

25

Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in

26

paragraph 7.4(a)(2), below, have been followed];

27

(c) the court and its personnel;

28

(d) court reporters and their staff, professional jury or trial consultants,

11

1

and Professional Vendors to whom disclosure is reasonably necessary for this

2

litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

3

(Exhibit A); and
(e) the author or recipient of a document containing the information or a

4
5

custodian or other person who otherwise possessed or knew the information.

6

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

7

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a) Unless otherwise ordered by the court or agreed to in writing by the

8
9

Designating Party, a Party that seeks to disclose to an Expert (as defined in this

10

Order) any information or item that has been designated “HIGHLY

11

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)

12

first must make a written request to the Designating Party that (1) identifies the

13

general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

14

information that the Receiving Party seeks permission to disclose to the Expert, (2)

15

sets forth the full name of the Expert and the city and state of his or her primary

16

residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the

17

Expert’s current employer(s), (5) identifies each person or entity from whom the

18

Expert has received compensation or funding for work in his or her areas of expertise

19

or to whom the expert has provided professional services, including in connection

20

with a litigation, at any time during the preceding five years, and (6) identifies (by

21

name and number of the case, filing date, and location of court) any litigation in

22

connection with which the Expert has offered expert testimony, including through a

23

declaration, report, or testimony at a deposition or trial, during the preceding five

24

years.

25

(b) A Party that makes a request and provides the information specified

26

in the preceding respective paragraphs may disclose the subject Protected Material to

27

the identified Expert unless, within 14 days of delivering the request, the Party

28

receives a written objection from the Designating Party. Any such objection must set

12

1

forth in detail the grounds on which it is based.
(c) A Party that receives a timely written objection must meet and

2
3

confer with the Designating Party (through direct voice to voice dialogue) to try to

4

resolve the matter by agreement within seven days of the written objection. If no

5

agreement is reached, the Party seeking to make the disclosure to Designated House

6

Counsel or the Expert may file a motion as provided in Civil Local Rule 7 and in

7

compliance with Civil Local Rule 79-5, if applicable, seeking permission from the

8

court to do so. Any such motion must describe the circumstances with specificity, set

9

forth in detail the reasons why the disclosure to the Expert is reasonably necessary,

10

assess the risk of harm that the disclosure would entail, and suggest any additional

11

means that could be used to reduce that risk. In addition, any such motion must be

12

accompanied by a competent declaration describing the parties’ efforts to resolve the

13

matter by agreement (i.e., the extent and the content of the meet and confer

14

discussions) and setting forth the reasons advanced by the Designating Party for its

15

refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear

16
17

the burden of proving that the risk of harm that the disclosure would entail (under the

18

safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

19

Material to its Expert.
Any motion seeking the Court’s resolution of a dispute about the terms of this

20
21

protective order must comply with Local Rules 37-1 and 37-2, including the Joint

22

Stipulation provision.

23

8.

24

PROSECUTION BAR
Absent written consent from the Producing Party, any individual who actually

25

views or actually otherwise receives “CONFIDENTIAL” and/or “HIGHLY

26

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information relating to any

27

apparatus or method of use of an apparatus by the Producing Party for loading a

28

freight container with scrap metal, shall not be involved in the prosecution of claims

13

1

for patents or patent applications relating to any apparatus or method of use of an

2

apparatus for loading a freight container with scrap metal, including without

3

limitation the patent asserted in this action, U.S. Patent No. 7,837,428, and including

4

without limitation any patent or application claiming priority to or otherwise related

5

to the patent asserted in this action, before any foreign or domestic agency, including

6

the United States Patent and Trademark Office (“the Patent Office”). For purposes of

7

this paragraph, “prosecution of claims” means directly or indirectly drafting,

8

amending, advising, or otherwise affecting the scope of patent claims. To avoid any

9

doubt, “prosecution of claims” as used in this paragraph does not include

10

representing a party challenging a patent before a domestic or foreign agency

11

(including, but not limited to, a reissue protest, ex parte reexamination or inter partes

12

reexamination). This Prosecution Bar shall begin when access to

13

“CONFIDENATIAL” and/or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

14

ONLY” information is first received by the affected individual.

15

9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

16

If a Party is served with a subpoena or a court order issued in other

17

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

18

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

19

EYES ONLY” that Party must:

20
21
22

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or

23

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

24

subpoena or order is subject to this Protective Order. Such notification shall include

25

a copy of this Stipulated Protective Order; and

26
27

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

28

14

1

If the Designating Party timely seeks a protective order, the Party served

2

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

3

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

4

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

5

issued, unless the Party has obtained the Designating Party’s permission or a court or

6

agency so orders. The Designating Party shall bear the burden and expense of

7

seeking protection in that court of its confidential material – and nothing in these

8

provisions should be construed as authorizing or encouraging a Receiving Party in

9

this action to disobey a lawful directive from another court.

10
11

10.

A NON-PARTY’S PROTECTED
PRODUCED IN THIS LITIGATION
(a)

MATERIAL

SOUGHT

TO

BE

The terms of this Order are applicable to information produced by

12

a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

13

CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. Such information produced by

14

Non-Parties in connection with this litigation is protected by the remedies and relief

15

provided by this Order. Nothing in these provisions should be construed as

16

prohibiting a Non-Party from seeking additional protections.

17

(b)

In the event that a Party is required, by a valid discovery request,

18

to produce a Non-Party’s confidential information in its possession, and the Party is

19

subject to an agreement with the Non-Party not to produce the Non-Party’s

20

confidential information, then the Party shall:

21

1. promptly notify in writing the Requesting Party and the Non-

22

Party that some or all of the information requested is subject to a confidentiality

23

agreement with a Non-Party;

24

2. promptly provide the Non-Party with a copy of the Stipulated

25

Protective Order in this litigation, the relevant discovery request(s), and a reasonably

26

specific description of the information requested; and

27

3. make the information requested available for inspection by the

28

15

1

Non-Party.
(c)

2

If the Non-Party fails to object or seek a protective order from

3

this court within 14 days of receiving the notice and accompanying information, the

4

Receiving Party may produce the Non-Party’s confidential information responsive to

5

the discovery request. If the Non-Party timely seeks a protective order, the Receiving

6

Party shall not produce any information in its possession or control that is subject to

7

the confidentiality agreement with the Non-Party before a determination by the

8

court. Absent a court order to the contrary, the Non-Party shall bear the burden and

9

expense of seeking protection in this court of its Protected Material.

10

11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

11

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

12

disclosed Protected Material to any person or in any circumstance not authorized

13

under this Stipulated Protective Order, the Receiving Party must immediately (a)

14

notify in writing the Designating Party of the unauthorized disclosures, (b) use its

15

best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

16

the person or persons to whom unauthorized disclosures were made of all the terms

17

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

18

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

19

12.

20

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
If a Producing Party claims to have inadvertently produced information

21

covered by the attorney-client privilege or work product protection, that Producing

22

Party shall promptly after discovery of such an inadvertent production notify the

23

Receiving Party in writing, provide a privilege log describing the information, and

24

request the return or destruction of such information and shall explain the basis for

25

the claim. After being notified, the Receiving Party must, regardless of whether it

26

agrees with the claim, within ten (10) days return or destroy the specified

27

information and any copies it has; must not use or disclose the information until the

28

16

1

claim is resolved; and must take reasonable steps to retrieve the information if the

2

Receiving Party disclosed it before being notified. If, after receiving a privilege log

3

describing the information, there remains disagreement about the claim of attorney-

4

client privilege or work product protection, the Receiving Party shall move the

5

Court, within ten (10) business days of receiving the privilege log, for a

6

determination of the claim. The Producing Party shall have the burden of proving

7

that such attorney-client privilege or work product protection exists.
Any motion seeking the Court’s resolution of a dispute about the terms of this

8
9

protective order must comply with Local Rules 37-1 and 37-2, including the Joint

10

Stipulation provision.

11

13.

12
13
14

MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.
13.2 Right to Assert Other Objections. By stipulating to the entry of this

15

Protective Order no Party waives any right it otherwise would have to object to

16

disclosing or producing any information or item on any ground not addressed in this

17

Stipulated Protective Order. Similarly, no Party waives any right to object on any

18

ground to use in evidence of any of the material covered by this Protective Order.

19

13.3 Filing Protected Material. Without written permission from the

20

Designating Party or a court order secured after appropriate notice to all interested

21

persons, a Party may not file in the public record in this action any Protected

22

Material. A Party that seeks to file under seal any Protected Material must comply

23

with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant

24

to a court order authorizing the sealing of the specific Protected Material at issue. If a

25

Receiving Party's request to file Protected Material under seal pursuant to Civil

26

Local Rule 79-5 is denied by the court, then the Receiving Party may file the

27

Protected Material in the public record unless otherwise instructed by the court.

28

17

14.

FINAL DISPOSITION

1

Within 60 days after the final disposition of this action, as defined in

2

paragraph 4, each Receiving Party must return all Protected Material to the

3

Producing Party or destroy such material. As used in this subdivision, “all Protected

4

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

5

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

6

Protected Material is returned or destroyed, the Receiving Party must submit a

7

written certification to the Producing Party (and, if not the same person or entity, to

8

the Designating Party) by the 60-day deadline that (1) identifies (by category, where

9

appropriate) all the Protected Material that was returned or destroyed and (2) affirms

10

that the Receiving Party has not retained any copies, abstracts, compilations,

11

summaries or any other format reproducing or capturing any of the Protected

12

Material. Notwithstanding this provision, Counsel are entitled to retain an archival

13

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

14

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

15

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

16

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

17

Material remain subject to this Protective Order as set forth in Section 4

18

(DURATION).

19
20

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated:

21
22
23
24

HOFFMAN PATENT GROUP
By: /s/ David L. Hoffman
David L. Hoffman, Esq. (SBN 143,474)
Albert Wu, Esq. (SBN 228268)
28494 Westinghouse Place, Suite 204
Valencia, California 91355
Attorneys for Defendant Express Metals Recycling

25
26

Dated:

27

BRYAN CAVE LLP

28

By: /s/ Berrie R. Goldman

18

1

Berrie R. Goldman, California Bar No. 246061
Nicholas A. Lind, California Bar No. 280427
BRYAN CAVE LLP
560 Mission Street, Suite 2500
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]

2
3
4
5

Jonathan S. Pink, California Bar No. 179685
BRYAN CAVE LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]

6
7
8
9

13

Robert Lancaster, California Bar No. 257504
BRYAN CAVE LLP
120 Broadway, Suite 300
Santa Monica, California 90401-2386
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]

14

Attorneys for Plaintiff SA RECYCLING LLC

10
11
12

15

PURSUANT TO STIPULATION, IT IS SO ORDERED.

16
17
18
19
20

DATED: June 10, 2013

__________________________
Hon. Jean P. Rosenbluth
United States Magistrate Judge

21
22
23
24
25
26
27
28

19

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
3

I, _____________________________ [print or type full name], of

4

_________________ ________________________[print or type full address],

5

declare under penalty of perjury that I have read in its entirety and understand the

6

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

7

the Central District of California on __________________ in the case of SA

8

Recycling, LLC. v. Express Metals Recycling. CASE NO. SACV 01607 AG(JPRx).

9

I agree to comply with and to be bound by all the terms of this Stipulated Protective

10

Order and I understand and acknowledge that failure to so comply could expose me

11

to sanctions and punishment in the nature of contempt. I solemnly promise that I will

12

not disclose in any manner any information or item that is subject to this Stipulated

13

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

14

provisions of this Order.

15

I further agree to submit to the jurisdiction of the United States District Court

16

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

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action.

19

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

20

_______________________________________ [print or type full address and

21

telephone number] as my California agent for service of process in connection with

22

this action or any proceedings related to enforcement of this Stipulated Protective

23

Order.

24

City and State where sworn and signed: _________________________________

25

Printed name: ______________________________

26
27

Signature: __________________________ Date: ____________

28

20