Dino Ditta v. Mentor Graphics Corporation et al

Filing 21

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich, re: Stipulation for Protective Order, 20 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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DINO DITTA,
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)
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Plaintiff,
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v.
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MENTOR GRAPHICS
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CORPORATION, an Oregon
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corporation; HENRY POTTS, an
individual; and DOES 1 through 20, )
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inclusive,
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Defendants.
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)
)

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May 20, 2013
June 27, 2013
Aug. 19, 2014

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Complaint Filed:
Complaint Removed:
Trial:

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PROTECTIVE ORDER RE
CONFIDENTIAL INFORMATION

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Judge Cormac J. Carney
Courtroom 9B

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CASE NO. SA CV-13-00973-CJC
(AJWx)

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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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Good cause exists for the Court to enter the following Protective Order Re.

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Confidential Information (the “Protective Order”). Plaintiff Dino Ditta (“Ditta”) is

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the current President and CEO of DataTrax Incorporated, which has proprietary

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software products, and Ditta also works as a consultant on products and business

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activities for third parties in the software product industry. Defendant Mentor

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Graphics Corporation (“Mentor”) manufactures and sells computer software that

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assists engineers in designing and fabricating complex electronic systems such as

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printed circuit boards and integrated circuits. Ditta and Mentor (collectively, “the

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parties”) are thus both in the software industry and have highly sensitive business

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information. Ditta’s former business, Router Solutions, Inc., the acquisition of

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which is at issue in this litigation, was a private business that did not report any

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financial information to the public. Moreover, Mentor and Ditta maintain

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confidential, proprietary and trade secret information relating to the software at

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issue in this litigation, as well as business plans, customer information, and

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financial information relating to their businesses and the software at issue. The

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broad dissemination of this confidential information can permanently and

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irreparably harm the parties’ competitive standing by allowing competitors to use

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the information for business gain without the incidental expenditures and costly

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research required to independently create it. This unfair advantage is problematic

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to the discovery process in this action because each party, without a protective

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order in place, runs the risk of serious and irreparable harm to its business. The

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Ninth Circuit recognizes that dissemination of confidential business information is

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the “precise sort of information” which, if disclosed, would harm a litigant’s

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competitive standing. Electronic Arts, Inc. v. United States District Court, Case

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No. 08-74426, 2008 U.S. App. LEXIS 22476, at *4-5 (9th Cir. Oct. 28, 2008).

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The parties have jointly drafted this Protective Order and seek to have it

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entered by the Court to prevent harmful disclosure of the parties’ confidential

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information while balancing the public’s right to acquire information that properly
falls outside the scope of the parties’ protectable, confidential interests. The
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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parties agree that the adoption and adherence to this Protective Order will facilitate

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an orderly and cost-effective discovery process and preparation for trial or

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settlement, and that the confidential information will not be used for any purpose

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that is not directly related to this litigation. Therefore, good cause exists to enter

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this Protective Order to facilitate the mutual exchange of information without

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harming the competitive standing of the parties in the Action.

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IT IS HEREBY ORDERED:
1.

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Disclosure and discovery activity in this action are likely to involve

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

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

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this litigation is warranted. Accordingly, the parties stipulate to and petition the

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Court to enter the following Protective Order, which shall govern the procedure for

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designating as confidential certain categories of documents and information

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produced in connection with discovery in this Action, including by non-parties,

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and shall define limitations on the use and disclosure of such confidential

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materials. The parties further acknowledge that this Protective Order creates no

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entitlement to file confidential information under seal; the Local Rules of this

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Court set forth the procedures that must be followed and reflects the standards that

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will be applied when a party seeks permission from the Court to file material under

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seal.

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2.

Any party who is required to produce documents or information in

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discovery in this case (hereafter referred to as the “producing party”) may

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designate the material produced as “confidential” pursuant to this Protective Order.

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In doing so, the producing party represents that it has a bona fide belief that the

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document or information designated as “confidential” (a) constitutes trade secret,

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proprietary or commercial information which has been preserved or maintained in

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a manner reasonably calculated to preserve its confidentiality from the public,

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(b) is subject to a legally-protected right of privacy by the producing party,
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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including but not limited to any right of privacy created by or recognized under the

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United States Constitution, the California Constitution, any state or federal statute

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or case law, or (c) would reveal confidential research, development, financial,

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marketing, customer, personnel or other business information of the producing

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party or its clients. (Documents and information within this category shall be

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referred to herein as “confidential material.”)

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At minimum, a producing party must designate those documents which he or

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it believes contain confidential material by (i) affixing to each such document the

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legend “CONFIDENTIAL” in a size and location(s) which makes the designation

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readily apparent; (ii) designating by Bates-stamp number; or (iii) describing by

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way of category or other unambiguous designation. A “CONFIDENTIAL”

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designation also must be affixed to any documents produced in the course of this

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Action, including portions of briefs, memoranda or any other writings filed with

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the Court, which mention, discuss or comment upon any confidential material.

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3.

With regard to the production of documents or information by any

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non-party to this Action, any party to this Action may designate all or any portion

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of such documents and information to be confidential material pursuant to this

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Protective Order by serving on all parties a specific designation, by Bates number

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to the extent possible, of the material claimed as “confidential” within thirty (30)

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days of receiving copies of the material. In doing so, the designating party makes

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the same representation set forth in paragraph 2 with respect to confidential

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material. Once designated as “confidential” the confidential material shall be

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treated in accordance with such designation for all purposes consistent with the

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terms of this Protective Order, and each party shall make certain that all such

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confidential material bears the “CONFIDENTIAL” legend pursuant to the

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requirements of this Protective Order.

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4.

All copies, extracts, summaries, charts or notes (collectively,

“Extracts”) of any confidential material shall also constitute and be treated as
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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confidential material as provided in this Protective Order. Any person making

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Extracts or causing Extracts to be made of any confidential material shall make

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certain that all such Extracts bear the “CONFIDENTIAL” legend pursuant to the

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requirements of this Protective Order.

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5.

Confidential material shall not be used for any purpose other than the

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prosecution or defense of this Action or as otherwise required by law. The parties

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to this Action and their counsel shall take all diligent precautions to prevent the

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disclosure of any confidential material designated in this lawsuit to persons not

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authorized pursuant to this Protective Order.

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6.

Confidential material designated in this Action may not be disclosed

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to any person unless the disclosure is authorized by the terms of paragraph 9 of this

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Protective Order. In the event that additional persons become parties to or appear

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in this Action, neither the additional persons nor their counsel of record, in-house

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counsel, or any person acting on their behalf or retained to assist such additional

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persons, shall have access to any confidential material designated in this Action

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until such additional person’s counsel of record has consented in writing to this

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Protective Order. Each such additional person must obtain written consent of the

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parties hereto prior to entering into this Protective Order, which consent shall not

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be unreasonably withheld.

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7.

Any document or information designated as confidential in this

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Action which is filed with the Court for any purpose shall be filed in a sealed

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envelope or other container marked on the outside with the caption of this Action

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and the following statement:

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“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”

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If any person fails to file under seal any confidential material designated in this

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lawsuit, such person immediately shall contact the Court’s clerk and arrange to

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have the confidential material designated in this lawsuit placed under seal. The

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producing party may apply to have the confidential material designated in this
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lawsuit placed under seal.
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The parties shall use their best efforts to include confidential material

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designated as such in Court filings only when absolutely necessary, and shall, to

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the extent possible, file redacted versions of sealed filings that redact any portions

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of those filings that contain or reflect material designated as “confidential.” If an

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application to seal is pending, any materials filed under seal shall remain under

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seal and shall not be disclosed to any person other than Court personnel, counsel of

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record who have agreed to this Protective Order, and any other person permitted

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under the terms of this Protective Order to have access to the sealed materials, until

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the Court has ruled on the application to seal. A complete, unredacted set of

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documents filed under seal shall be provided by the filing party to all other counsel

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of record who have agreed to this Protective Order.

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9.

Confidential material designated as “CONFIDENTIAL” shall be used

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by the party receiving such information solely for purposes related to this

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litigation and may be disclosed only to the following persons:
(a)

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officers, directors, and employees of a party to whom it is

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deemed necessary that the documents be shown for purposes of the Action,

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provided that any such persons shall be advised before being provided the

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confidential material that they are subject to the terms of this Protective Order;
(b)

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inside and outside counsel for the respective parties, and their

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respective partners, shareholders, associates, of counsel, law clerks, paralegals, and

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secretaries engaged in work for such counsel to assist in this Action (collectively

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“Counsel”); and any support staff and independent contractors (including outside

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vendors such as photocopying services) assisting counsel in the prosecution or

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defense of this Action;
(c)

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experts or consultants retained for purposes of this Action

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(“Retained Experts”), in accordance with the procedures set forth in paragraph 10

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below;
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

(d)

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witnesses in the course of deposition, hearing, or trial testimony

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where counsel has a reasonable and good faith belief that examination with respect

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to the confidential material is necessary, and any person being prepared to testify,

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where counsel has a reasonable and good faith belief that such person will be a

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witness in this action and that his/her examination with respect to the confidential

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material is necessary in connection with such testimony; persons to whom

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confidential material is disclosed pursuant to this subparagraph may not be

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permitted to retain copies of the confidential material;
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any person who authored the confidential material, or

previously received the confidential material in the ordinary course of business;
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court reporters, videographers, and persons preparing

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transcripts of depositions to whom disclosure is reasonably necessary for this

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Action;

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(g)

the Court, Court personnel, and jurors or potential jurors; and

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any other person upon order of the Court or upon stipulation of

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the producing party, in writing or on the record of a deposition, or at a hearing or

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trial.

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10.

Counsel desiring to reveal information designated in this Action as

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“CONFIDENTIAL” to any Retained Experts shall secure from each such person,

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prior to disclosure of the confidential material, a signed “Acknowledgement and

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Agreement to Be Bound” (“Acknowledgement”) stating that the person has read

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this Protective Order, understands its provisions, agrees to be bound thereby, and

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agrees to be subject to the jurisdiction of this Court for any proceedings relative to

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enforcement of this Protective Order. The Acknowledgement shall be in the form

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attached to the Protective Order as Exhibit A. Counsel shall retain all original

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signed Acknowledgements obtained pursuant to this paragraph and provide a copy

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to counsel for the designating party by email. If the person to whom disclosure is

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to be made fails to sign the Acknowledgement despite reasonable attempts by
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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counsel to procure his or her signature, the confidential material shall not be

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provided to such person. The lack of an executed Acknowledgement shall in no

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way limit the applicability of the Protective Order to such person.

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Counsel desiring to reveal information designated in this Action as

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“CONFIDENTIAL” to any Retained Expert shall also deliver by email to counsel

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for the designating party, along with a copy of the Acknowledgement signed by the

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Retained Expert, a written disclosure providing the Retained Expert’s name,

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current curriculum vitae, and a statement of whether counsel believes in good faith

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that the Retained Expert currently provides services, as an employee, independent

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contractor or consultant, to a competitor of the designating party. The designating

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party shall have 10 court days from its receipt of this limited disclosure to move

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the Court for a protective order with respect to the provision of confidential

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material to the Retained Expert. The confidential material shall not be provided to

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the Retained Expert until (1) the expiration of the 10 court days following the

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designating party’s receipt of the limited disclosure provided in this paragraph, if

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no motion for protective order is filed, or (2) if a motion for protective order is

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timely filed, the Court’s ruling on such motion in accordance with that ruling,

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unless the Court rules that disclosure to the Retained Expert is prohibited.

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This Protective Order shall remain in full force and effect and shall

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continue to be binding on all parties and affected persons after the termination of

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this Action and any appeals, subject to any subsequent modifications by the Court.

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The parties agree to cooperate in executing any additional documents, making any

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appearances, or taking any other actions as may be necessary to ensure the

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effectiveness of this paragraph.

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12.

Whenever confidential material designated in this Action is to be

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discussed or disclosed in a deposition, the producing party may exclude from the

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room any person who is not authorized to see or to receive the confidential

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material pursuant to the terms of paragraph 9 of this Protective Order.
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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13.

Any party wishing to designate as confidential deposition testimony

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or documents submitted as exhibits to a deposition may do so on the record during

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the deposition, or within thirty (30) days after receipt of the deposition transcript

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and exhibits by providing written notice of the designation to the parties and any

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other affected person. When deposition testimony or exhibits are designated as

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confidential during a deposition, the reporter and/or videographer shall bind and/or

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label the transcript or video recording in the manner described in paragraph 7 of

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this Protective Order. Upon being informed within the 30-day period that certain

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portions of a deposition are to be designated confidential, each party must cause

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each copy in its custody or control to be so marked immediately. It would not be a

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violation of this Protective Order if a disclosure of information is made by a party

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prior to the designation of confidentiality. The parties shall cooperate to the extent

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reasonable and practical to segregate such confidential material into a separate

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document or transcript.

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14.

Nothing in this Protective Order shall prohibit a party from disclosing

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confidential material designated in this Action to any person who was an author,

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addressee, or recipient of the information or document.

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15.

Unless and until otherwise ordered by the Court or otherwise agreed

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by the parties, all documents and other discovery material designated

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“CONFIDENTIAL” shall be treated accordingly under this Protective Order. Any

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party to this Action may object to the designation of any document or information

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as “CONFIDENTIAL” by serving a written objection on the designating party and

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all parties to this Action. If the objecting party and the designating party are

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unable to resolve the objection in good faith, the objecting party may move the

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Court for an order with respect to the document or information by initiating

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preparation of a joint stipulation pursuant to Local Rule 37-2.2. Completion and

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filing of the joint stipulation and any supplemental memoranda shall be as set forth

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in Local Rules 37-2.2 and 37-2.3. The document or information shall be treated as
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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“CONFIDENTIAL,” as designated, until the Court rules otherwise. If no such

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motion is made, said document or information shall keep its classification. In the

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event of a motion concerning this Protective Order, the Court shall have the

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discretion to award attorneys’ fees to the party or parties prevailing on the motion.

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The designating party shall have the burden of proving that the document or

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information challenged is entitled to the confidentiality designation.

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16.

In the event of any inadvertent disclosure of attorney-client privileged

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information or information subject to the attorney work product doctrine or any

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other privilege, the party making such inadvertent disclosure, after learning of such

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inadvertent disclosure, shall notify the party to whom the inadvertent disclosure

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was made; the party to whom the inadvertent disclosure was made shall then

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immediately return such material and all copies the party made thereof. Also, in

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the event any party hereto receives any document from another party that upon its

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face is subject to the attorney-client privilege, attorney work product doctrine, or

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any other privilege, that party shall immediately return such document and all

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copies the party made thereof to the party who produced the document.

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17.

Nothing in this Protective Order shall be construed as an admission or

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agreement by any party that any information designated hereunder as

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“CONFIDENTIAL” by other parties actually constitutes confidential information

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or proprietary information. The production of confidential material pursuant to

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this Protective Order shall not be construed as a waiver of objections based on any

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grounds. Nothing contained in this Protective Order shall preclude any party from

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objecting and refusing to comply with a production on any grounds or requesting

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additional protection with respect to documents and other information, including,

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but not limited to, further restrictions on disclosure, on any grounds.

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18.

The procedures set forth herein shall not relieve a party of the

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necessity of making timely responses or objections to discovery requests.

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Notwithstanding anything to the contrary contained herein, all objections as to the
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form and scope of discovery or to the admissibility of evidence subject to this

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Protective Order are reserved and are not waived in any respect by any terms of

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this Protective Order or by production of confidential material designated in this

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Action. Accordingly, this Protective Order shall not be construed as a waiver of

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any right to object to the furnishing of documents and/or information in response to

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discovery based on any ground including, without limitation, that the information

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sought is privileged, protected from disclosure by third-party or other privacy

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rights, irrelevant, burdensome or otherwise nondiscoverable or inadmissible at trial

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or other proceedings in this Action.

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This Protective Order shall not abrogate or diminish any contractual,

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statutory or other legal obligation or right of any party or person with respect to

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any proprietary information or trade secrets. The fact that any document or

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information is disclosed, used, or produced in discovery or at trial herein shall not

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be admissible evidence in any action or proceeding before any court, agency, or

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tribunal on the issue of whether or not such document or information is

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confidential or proprietary.

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20.

At the conclusion of this Action, including any appeals, all

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confidential material designated in this Action (including, without limitation, any

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copies, Extracts, or summaries thereof) shall be returned to the producing party

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within sixty (60) days; provided, however, that counsel shall be entitled to retain

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pleadings, memoranda, declarations or affidavits, or deposition transcripts that

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attach, contain, or refer to any confidential material, but only to the extent

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necessary to preserve a litigation file with respect to this case. The terms of this

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Protective Order shall survive and continue to be binding on all affected persons

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after this matter is resolved unless otherwise ordered by a court of competent

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jurisdiction. Each party’s counsel shall provide to the other parties, within sixty

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(60) days of the conclusion of this Action, a declaration or affidavit attesting to

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compliance with this paragraph.
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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21.

If, prior to a party’s return of a producing party’s confidential

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material, the producing party’s material becomes the subject of a subpoena,

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discovery request or demand in any other proceeding of any kind, the party shall

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notify the producing party whose confidential material is subject to the demand

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within three (3) business days of receipt of the demand. Notification shall be given

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by email and mail to the producing party’s counsel of record in this case and shall

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include a copy of the demand. The party to whom the demand is addressed shall

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not produce any of the producing party’s confidential material for fourteen (14)

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days following receipt of the demand, to permit the producing party adequate

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opportunity to preserve the continued confidentiality of its confidential material.
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Nothing in this Protective Order shall limit any producing party’s use

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of its own confidential material or shall prevent any producing party from

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disclosing its confidential material to any person. Such disclosures shall not affect

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any confidential designation made pursuant to the terms of this Protective Order so

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long as the disclosure is made in a manner that is reasonably calculated to maintain

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the confidentiality of the information.

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11.

Mentor requested, and Ditta refused to agree to, the inclusion of an

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attorneys’-eyes-only provision in the Protective Order. In the interest of moving

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forward with the pending production and avoiding a motion over the issue until

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absolutely necessary, Mentor agreed that this version of the Protective Order need

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not include such a provision. The parties reserve the right to (1) move the Court to

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amend or modify this Protective Order at any time, including, without limitation, to

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include additional provisions for the handling and designation of highly

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confidential materials as “attorneys’ eyes only,” and (2) object and refuse to

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provide information in response to discovery requests seeking information that the

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responding party contends is highly confidential, until such time as the Court rules

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on the responding party’s motion to amend or modify this Protective Order to

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include an attorneys’-eyes-only tier of protection, which motion shall be brought
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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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by the responding party within 10 court days of service of the responding party’s

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objections on such grounds. This Court shall retain jurisdiction to make such

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amendments, modifications and additions to this Protective Order as may be

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agreed to by the parties or as necessary in the interests of justice.

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IT IS SO ORDERED.

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12/19/2013
DATED: ______________________
The Honorable Andrew J. Wistrich
United States Magistrate Judge

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PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION

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EXHIBIT A

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AGREEMENT TO BE BOUND BY CONFIDENTIALITY ORDER

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

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___________________________________________ [print or type full address],

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

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Stipulated Protective Order Re Confidential Information that was issued by the

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United States District Court for the Central District of California on

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_____________ [date] in the case of Dino Ditta v. Mentor Graphics Corporation,

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Case No. SACV-13-00973CJC (AJWx) (the “Order”). I agree to comply with and

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to be bound by all the terms of the Order. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to the Order to any

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person or entity except in strict compliance with the provisions of the Order. I

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

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Central District of California for the purpose of enforcing the terms of the Order,

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

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Date: __________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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