Roger Cleveland Golf Company Inc. et al v. Callaway Golf Company

Filing 45

PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 42 (mt)

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I ANTHONY L. CANNON (SBN.: 162986) JULIA A. MOUSER (SBN.: 118059) 2 CANNON & NELMS, A PC 160 S. Old Spring Road, Suite 200 3 Anaheim, CA 92808 4 Telephone: (714) 637-4400; Facsimile: (714) 637-4444 5 6 ROGER W. PARKHURST (Admitted Pro Hac Vice) 7 MICHAEL J. ALLAN (Admitted Pro Hac Vice) 8 STEPTOE & JOHNSON LLP 1330 Connecticut Ave. N.W. 9 Washington, D.C. 20036 10 Telephone: (202) 429-3000; Facsimile: (202) 429-3902 11 12 Attorneys fo.r Plaintiffs ROGER CLEVELAND GOLF COMPANY, INC. 13 and DUNLOP SPORTS CO. LTD. 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA- SOUTHERN DIVISION Case No. 8:13-cv-01642 AG (RNBx) 16 ROGERCLEVELANDGOLF COMPANY, INC., a California 17 corporation; and DUNLOP SPORTS CO. (Proposed) PROTECTIVE ORDER 18 LTD., a Japanese corporation 15 19 Plaintiffs, 20 v. 21 22 CALLAWAYGOLFCOMPANY,a Delaware corporation, 23 24 Defendant 25 26 27 28 1 PROTECTIVE ORDER 1 1. PURPOSE AND LIMITS OF THIS ORDER 2 Discovery in this action is likdy to involve confidential, proprietary, or private 3 information .requiring special protection from public disclosure and from use for any 4 purpose other than this litigation. Thus, the Court enters this Protective Order. This 5 Order does not confer blanket protections on all disclosures or responses to discovery, 6 and the protection it gives from public disclosure and use extends only to the specific 7 material entitled to confidential treatment under the applicable legal principles. This 8 Order does not automatically authorize the filing under seal of material designated 9 under this Order. Instead, the parties must comply with L.R 79-5.1 if they seek to file 10 anything under seal. This Order does not govern the use at trial of material designated 11 under this Order. 12 2. DESIGNATING PROTECTED MATERIAL 13 2.1 Over-Designation Prohibited. Any party or non-party who designates 14 information or items for protection under this Order as "CONFIDENTIAL," 15 "HIGHLY CONFIDENTIAL- ATIORNEY EYES ONLY," or "HIGHLY 16 CONFIDENTIAL - SOURCE CODE" (a "designator") must only designate specific 17 material that qualifies under the appropriate standards. To the extent practicable, only 18 those parts of documents, items, or oral or written communications that .require 19 protection shall be designated. Designations with a higher confidentiality levd when a 20 lower levd would suffice are prohibited. Mass, indiscriminate, o.r routinized 21 designations are prohibited. Unjustified designations expose the designator to 22 sanctions, including the Court's striking all confidentiality designations made by that 23 designator. Designation under this Order is allowed only if the designation is necessary 24 to protect material that, if disclosed to persons not authorized to view it, would cause 25 competitive or other recognized harm. Material may not be designated if it has been 26 made public, or if designation is otherwise unnecessary to protect a secrecy interest. If a 27 designator learns that information or items that it designated for protection do not 28 2 PROTECTNE ORDER 1 qualify for protection at all or do not qualify for the levd of protection initially asserted, 2 that designator must prompdy notify all parties that it is withdrawing the mistaken 3 designation. 4 2.2 Manner and Timing of Designations. Designation under this Order 5 requires the designator to affix the applicable legend ("CONFIDENTIAL," 6 "HIGHLY CONFIDENTIAL- ATIORNEY EYES ONLY," or "HIGHLY 7 CONFIDENTIAL- SOURCE CODE'') to each page that contains protected 8 material For testimony given in deposition or other proceeding, the designator shall 9 specify all protected testimony and the levd of protection being asserted. It may make 10 that designation during the deposition or proceeding, or may invoke, on the record or 11 by written notice to all parties on or before the next business day, a right to have up to 12 21 days from the deposition or proceeding to make its designation. 13 2.2.1 A party or non-party that makes original documents or materials 14 available for inspection need not designate them for protection until after the 15 inspecting party has identified which material it would like copied and produced. 16 During the inspection and before the designation, all material shall be treated as 17 HIGHLY CONFIDENTIAL- ATTORNEY EYES ONLY. After the 18 inspecting party has identified the documents it wants copied and produced, the 19 producing party must designate the documents, or portions thereof, that qualify 20 for protection under this Order. 21 2.2.2 Parties shall give advance notice if they expect a deposition or other 22 proceeding to include designated material so that the other parties can ensure 23 that only authorized individuals are present at those proceedings when such 24 material is disclosed or used. The use of a document as an exhibit at a deposition 25 shall not in any way affect its designation. Transcripts containing designated 26 material shall have a legend on the tide page noting the presence of designated 27 material, and the tide page shall be followed by a list of all pages (including line 28 3 PROTECTNE ORDER 1 numbers as appropriate) that have been designated, and the level of protection 2 being asserted. The designator shall inform the court reporter of these 3 requirements. Any transcript that is prepared before the expiration of the 21-day 4 period for designation shall be treated during that period as if it had been 5 designated HIGHLY CONFIDENTIAL- ATTORNEY EYES ONLY unless 6 otherwise agreed. After the expiration of the 21-day period, the transcript shall 7 be treated only as actually designated. 8 2.3 Inadvertent Failures to Designate. An inadvertent failure to designate 9 does not, standing alone, waive protection under this Order. Upon timely assertion or 10 correction of a designation, all recipients must make reasonable efforts to ensure that 11 the material is treated according to this Order. 12 3. CHAI.I.ENGING CONFIDENTIALITY DESIGNATIONS 13 All challenges to confidentiality designations shall proceed under L.R 37-1 14 through L.R 37-4. 15 4. ACCESS TO DESIGNATED MATERIAL 16 4.1 Basic Principles. A receiving party may use designated material only for this 17 litigation. Designated material may be disclosed only to the categories of persons and 18 under the conditions described in this Order. 19 4.2 Disclosure of CONFIDENTIAL Material Without Further Approval 20 Unless otherwise ordered by the Court or permitted in writing by the designator, a 21 receiving party may disclose any material designated CONFIDENTIAL only to: 22 4.2.1 The receiving party's outside counsel of record in this action and 23 employees of outside counsel of record to whom disclosure is reasonably 24 necessary; 25 26 4.2.2 Only one in-house counsel, of the receiving party, which one inhouse counsel has complied with 4.4.1, and whose written request has been 27 28 4 PROTECTIVE ORDER 1 approved by designator, and who has signed the Agreement to Be Bound 2 (Exhibit A); 3 4.2.3 Experts retained by the receiving party's outside counsel of record 4 to whom disclosure is reasonably necessary, and who have signed the Agreement 5 to Be Bound (Exhibit A); 6 4.2.4 The Court and its personnel; 7 4.2.5 Outside court reporters and their staff, professional jury or trial 8 consultants, and professional vendors to whom disclosure is reasonably 9 necessary, and who have signed the Agreement to Be Bound (Exhibit A); 10 4.2.6 During their depositions, witnesses in the action to whom disclosure 11 is reasonably necessary and who have signed the Agreement to Be Bound 12 (Exhibit A); and 13 4.2. 7 The author or recipient of a document containing the material, or a 14 custodian or other person who otherwise possessed or knew the information. 15 4.3 Disclosure of HIGHLY CONFIDENTIAL-ATTORNEYEYES ONLY 16 and HIGHLY CONFIDENTIAL- SOURCE CODE Material Without Further 17 Approval. Unless permitted in writing by the designator, a receiving party may disclose 18 material designated IDGHLY CONFIDENTIAL- ATIORNEY EYES ONLY or 19 HIGHLY CONF1DENTIAL- SOURCE CODE without further approval only to: 20 4.3.1 The receiving party's outside counsel of record in this action and 21 employees of outside counsel of record to whom it is reasonably necessary to 22 disclose the information; 23 4.3.1A Only one in-house counseL of the receiving party, which one in- 24 house counsel has complied with 4.4.1, and whose written request has been 25 approved by designator, and who has signed the Agreement to Be Bound 26 (Exhibit A); 27 4.3.2 The Court and its personnel; 28 5 PROTECTNE ORDER 1 4.33 Outside court reporters and their staff, professional jury or trial 2 consultants, and professional vendors to whom disclosure is reasonably 3 necessary, and who have signed the Agreement to Be Bound (Exhibit A); and 4 4.3.4 The author or recipient of a document containing the material, or a 5 custodian or other person who otherwise possessed or knew the information. 6 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 7 CONFIDENTIAL- ATTORNEY EYES ONLY or HIGHLY 8 CONFIDENTIAL- SOURCE CODE Material to In-House Counsel or 9 Experts. Unless agreed to in writing by the designator: 10 4.4.1 A party seeking to disclose to in-house counsel any material 11 designated HIGHLY CONFIDENTIAL- A'ITORNEY EYES ONLY must 12 first make a written request to the designator providing the full name of the in- 13 house counsel, the city and state of such counsel's residence, and such counsel's 14 current and reasonably foreseeable future primary job duties and responsibilities 15 in sufficient detail to determine present or potential involvement in any 16 competitive decision-making. In-house counsel are not authorized to receive 17 material designated HIGHLY CONFIDENTIAL- SOURCE CODE. 18 4.4.2 A party seeking to disclose to an expert retained by outside counsel 19 of record any information or item that has been designated HIGHLY 20 CONFIDENTIAL- A TIORNEY EYES ONLY or HIGHLY 21 CONFIDENTIAL- SOURCE CODE must first make a written request to the 22 designator that (1) identifies the general categories of HIGHLY 23 CONF1DENTIAL -ATTORNEY EYES ONLY or HIGHLY 24 CONFIDENTIAL -SOURCE CODE information that the receiving party 25 seeks permission to disclose to the expert, (2) sets forth the full name of the 26 expert and the city and state of his or her primary residence, (3) attaches a copy 27 of the expert's current reswne, (4) identifies the expert's current employer(s), (5) 28 6 PROTECTIVE ORDER 1 identifies each person or entity from whom the expert has .received 2 compensation o.r funding fo.r work in his or her areas of expertise (including in 3 connection with litigation) in the past five years, and (6) identifies (by name and 4 number of the case, filing date, and location of court) any litigation where the 5 expert has offered expert testimony, including by declaration, report, or 6 testimony at deposition o.r trial, in the past five years. If the expert believes any 7 of this information at (4)- (6) is subject to a confidentiality obligation to a third 8 party, then the expert should provide whatever information the expert believes 9 can be disclosed without violating any confidentiality agreements, and the party 10 seeking to disclose the information to the expert shall be available to meet and 11 confer with the designator .regarding any such confidentiality obligations. 12 4.4.3 A party that makes a .request and provides the information specified 13 in paragraphs 4.4.1 o.r 4.4.2 may disclose the designated material to the identified 14 in-house counsel o.r expert unless, within seven days of delivering the .request, 15 the party receives a written objection from the designator providing detailed 16 grounds fo.r the objection. 17 18 19 4.4.4 All challenges to objections from the designator shall proceed under L.R. 37-1 through L.R 37-4. 5. SOURCE CODE 20 5.1 Designation of Source Code. If production of source code is necessary, a 21 party may designate it as HIGHLY CONFIDENTIAL- SOURCE CODE if it is, or 22 includes, confidential, proprietary, o.r trade secret source code. 23 5.2 Location and Supervision of Inspection. Any HIGHLY 24 CONFIDENTIAL- SOURCE CODE produced in discovery shall be made available 25 for inspection, in a format allowing it to be reasonably reviewed and searched, during 26 no.rmal business hours or at other mutually agreeable times, at an office of the 27 designating party's counsel or another mutually agreeable location. The source code 28 7 PROTECTIVE ORDER 1 shall be made available for inspection on a secured computer in a secured room, and 2 the inspecting party shall not copy, remove, or otherwise transfer any portion of the 3 source code onto any recordable media or recordable device. The designator may 4 visually monitor the activities of the inspecting party's representatives during any 5 source code review, but only to ensure that there is no unauthorized recording, 6 copying, or transmission of the source code. 7 5.3 Paper Copies of Source Code Excerpts. The inspecting party may request 8 paper copies of limited portions of sotttce code that are reasonably necessary for the 9 preparation of court filings, pleadings, expert reports, other papers, or for deposition or 10 trial. The designator shall provide all such source code in paper form, including Bates 11 numbers and the label "HIGHLY CONFIDENTIAL- SOURCE CODE.'' 12 5.4 Access Record. The inspecting party shall maintain a record of any 13 individual who has inspected any portion of the source code in electronic or paper 14 form, and shall maintain all paper copies of any printed portions of the source code in a 15 secured, locked area. The inspecting party shall not convert any of the information 16 contained in the paper copies into any electronic format other than for the preparation 17 of a pleading, exhibit, expert report, discovery document, deposition transcript, or 18 other Court document Any paper copies used during a deposition shall be retrieved at 19 the end of each day and must not be left with a court reporter or any other 20 unauthorized individual. 21 6. PROSECUTION BAR 22 Absent written consent from the designator, any individual who receives access 23 to HIGHLY CONFIDENTIAL-ATIORNEYEYES ONLY or HIGHLY 24 CONFIDENTIAL- SOURCE CODE information shall not be involved in the 25 prosecution of patents or patent applications concerning the field of the invention of 26 the patents-in-suit for the receiving party or its acquirer, successor, predecessor, or 27 other affiliate during the pendency of this action and for one year after its conclusion, 28 8 PROTECTIVE ORDER 1 including any appeals. ''Prosecution" means drafting, amending, advising on the 2 content of, or otherwise affecting the scope or content of patent claims or 3 specifications. These prohibitions shall not preclude counsel from participating in 4 .reexamination or interpartes review proceedings to challenge or defend the validity of 5 any patent, but counsel may not participate in the drafting of amended claims in any 6 such proceedings. 7 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 8 IN OTHER LITIGATION 9 7.1 Subpoenas and Court Orders. This Order in no way excuses non- 10 compliance with a lawful subpoena or court order. The purpose of the duties described 11 in this section is to alert the interested parties to the existence of this Order and to give 12 the designator an opportunity to protect its confidentiality interests in the court where 13 the subpoena or order issued. 14 7.2 Notification Requirement. If a party is served with a subpoena or a court 15 order issued in other litigation that compels disclosure of any information or items 16 designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL - 17 ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL- SOURCE CODE, 18 that party must: 19 20 21 7.2.1 Promptly notify the designator in writing. Such notification shall include a copy of the subpoena or court order; 7 .2.2 Promptly notify in writing the party who caused the subpoena or 22 order to issue in the other litigation that some or all of the material covered by 23 the subpoena or order is subject to this Order. Such notification shall include a 24 copy of this Order; and 25 26 7 .2.3 Cooperate with all reasonable procedures sought by the designator whose material may be affected. 27 28 9 PROTECTIVE ORDER 1 7.3 Wait For Resolution of Protective Order. If the designator timely seeks a 2 protective order, the party served with the subpoena or court order shall not produce 3 any information designated in this action as CONFIDENTIAL, HIGHLY 4 CONFIDENTIAL- ATIORNEY EYES ONLY or HIGHLY CONFIDENTIAL- 5 SOURCE CODE before a determination by the court where the subpoena or order 6 issued, unless the party has obtained the designator's permission. The designator shall 7 bear the burden and expense of seeking protection of its confidential material in that 8 court. 9 8. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 10 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 11 designated material to any person or in any circumstance not authorized under this 12 Order, it must immediately (1) notify in writing the designator of the unauthorized 13 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated 14 material, (3) inform the person or persons to whom unauthorized disclosures were 15 made of all the terms of this Order, and (4) use reasonable efforts to have such person 16 or persons execute the Agreement to Be Bound (Exhibit A). 17 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 18 PROTECTED MATERIAL 19 When a producing party gives notice that certain inadvertendy produced material 20 is subject to a claim of privilege or other protection, the obligations of the receiving 21 parties are those set forth in Federal Rule of Civil Procedure 26(b)(S)(B). This 22 provision is not intended to modify whatever procedure may be established in an e- 23 discovery order that provides for production without prior privilege review pursuant to 24 Federal Rule of Evidence 502(d) and (e). 25 10. FILING UNDER SEAL 26 Without written permission from the designator or a Court order, a party may 27 not file in the public record in this action any designated material. A party seeking to 28 10 PROTECTIVE ORDER 1 file under seal any designated material must comply with L.R. 79-5.1. Filings may be 2 made under seal only pursuant to a court order authorizing the sealing of the specific 3 material at issue. The fact that a document has been designated under this Order is 4 insufficient to justify filing under seal. Instead, parties must explain the basis for 5 confidentiality of each document sought to be filed under seal. Because a party other 6 than the designator will often be seeking to file designated mate.tiaL cooperation 7 between the parties in preparing, and in reducing the nwnber and extent of, requests 8 for under seal filing is essential If a receiving partyrs request to file designated 9 material under seal pursuant to L.R 79-5.1 is denied by the Court, then the receiving 10 party may Dle the materialin the public record unless (1) the designator seeks 11 reconsideration within four days of the denial, or (2) as otherwise instructed by the 12 Court. 13 11. FINAL DISPOSITION 14 Within 60 days after the final disposition of this action, each party shall return all 15 designated material to the designator or destroy such material, including all copies, 16 abstracts, compilations, summaries, and any other format reproducing or capturing any 17 designated material. The receiving party must submit a written certification to the 18 designator by the 60-day deadline that (1) identifies (by category, where appropriate) all 19 the designated material that was returned or destroyed, and (2) affirms that the 20 receiving party has not retained any copies, abstracts, compilations, summaries, or any 21 other format reproducing or capturing any of the designated material. This provision 22 shall not prevent counsel from retaining an archival copy of all pleadings, motion 23 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 24 Ill 25 Ill 26 27 28 11 PROTECTNE ORDER 1 deposition and trial exhibits, expert reports, attorney work produc~ and consultant and 2 expert work product, even if such materials contain designated material. Any such 3 archival copies remain subject to this Order. 4 IT IS SO ORDERED. 5 6 DATED: _ __ 4/15/2014 ---------------United States District Judge/Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PROTECTIVE ORDER 1 EXHIBIT A 2 AGREEMENTTOBEBOUND 3 I, - - - - - - - - - - - - - [print or type full name], of 4 - - - - -- - - - - - - - [print or type full address], under penalty 5 of perjury that I have read in its entirety and understand the Protective Order that was 6 issued by the United States District Court for the Central District of California on 7 2014, in the case of Roger Cleveland Golf Company Inc.: 8 Dunlop Sports Co. Ltd. Vs. Callaway Golf Company, Case No. 8:13-cv-1642 AG 9 (RNBx), I agree to comply with and to be bound by all the terms of this Protective 10 Order, and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment for contempt. I solemnly promise that I will not disclose in 12 any manner any information or item that is subject to this Protective Order to any 13 person or entity except in strict compliance with this Order. 14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing this Order, even if 16 such enforcement proceedings occur after termination of this action. 17 [print or type full name] of I hereby appoint 18 - - - - -- - - - - - - - - - - --[print or type full address and 19 telephone number] as my California agent for service of process in connection with this 20 action or any proceedings related to enforcement of this Order. 21 D a t e : - - - - -- - - - - - - 22 City and State where swom and signed:---- - - - - - - - - - - - 23 Printed name: - - - - - - - - - 24 25 26 [printed name] Signature: _ _ _ _ _ _ _ _ __ [signature] 27 28 13 PROTECTNE ORDER

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