Viking Associates, Inc. v. TD Inc. et al

Filing 31

STIPULATED PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 27 . (twdb)

1 TODD M. MALYNN (State Bar No.:181595)

Email: [e-mail]

2 FELDMAN GALE, P.A.

880 West First Street, Suite 315

3 Los Angeles, California 90012

Telephone No. [phone]

4 Facsimile No. [phone]

5 Attorneys for Defendant and Counterclaimant
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KING LOMBARDI ACQUISITIONS, INC.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

11 VIKING ASSOCIATES, INC., a North )

Carolina corporation,

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Plaintiff,
v.

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TD, INC., a Massachusetts corporation,
15 KING LOMBARDI ACQUISITIONS,
INC., a Florida corporation, VR
16 BUSINESS BROKERS, an unknown
organization, and DOES 1-10,
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Defendants.

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19 KING LOMBARDI ACQUISITIONS,
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INC., a Delaware corporation,
Counterclaimant,

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v.
VIKING RESOURCES, INC., a North

23 Carolina corporation, BRAD
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OFFERDAHL and JAY OFFERDAHL,
Counter Defendants.

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Case No.: 8:14-cv-0472 AG (RNBx)
The Hon. Andrew J. Guilford
[PROPOSED] STIPULATED
PROTECTIVE ORDER
Complaint filed: February 28, 2014
Removed: March 28, 2014

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1
STIPULATED PROTECTIVE ORDER

1 1.

PURPOSE AND LIMITS OF THIS ORDER

2

Discovery in this action is likely to involve confidential, proprietary, or

3 private information requiring special protection from public disclosure and from use
4 for any purpose other than this litigation. Thus, the Court enters this Protective
5 Order. This Order does not confer blanket protections on all disclosures or
6 responses to discovery, and the protection it gives from public disclosure and use
7 extends only to the specific material entitled to confidential treatment under the
8 applicable legal principles. This Order does not automatically authorize the filing
9 under seal of material designated under this Order. Instead, the parties must comply
10 with L.R. 79-5.1 if they seek to file anything under seal. This

Order

does

not

11 govern the use at trial of material designated 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” or
15 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (a “designator”) must
16 only designate specific material that qualifies under the appropriate standards. To
17 the extent practicable, only those parts of documents, items, or oral or written
18 communications that require protection shall be designated. Designations with a
19 higher confidentiality level when a lower level would suffice are prohibited. Mass,
20 indiscriminate, or routinized designations are prohibited. Unjustified designations
21 expose the designator to sanctions, including the Court’s striking all confidentiality
22 designations made by that designator. Designation under this Order is allowed only
23 if the designation is necessary to protect material that, if disclosed to persons not
24 authorized to view it, would cause competitive or other recognized harm. Material
25 may not be designated if it has been made public, or if designation is otherwise
26 unnecessary to protect a secrecy interest. If a designator learns that information or
27 items that it designated for protection do not qualify for protection at all or do not
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2

STIPULATED PROTECTIVE ORDER

1 qualify for the level of protection initially asserted, that designator must promptly
2 notify all parties that it is withdrawing the mistaken designation.
3

2.2

Manner and Timing of Designations. Designation under this Order

4 requires the designator to affix the applicable legend (“CONFIDENTIAL” or
5 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that
6 contains protected material. For testimony given in deposition or other proceeding,
7 the designator shall specify all protected testimony and the level of protection being
8 asserted. It may make that designation during the deposition or proceeding, or may
9 invoke, on the record or by written notice to all parties on or before the next
10 business day, a right to have up to 21 days from the deposition or proceeding to
11 make its designation.
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2.2.1 A party or non-party that makes original documents or materials

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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and

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produced. During the inspection and before the designation, all material shall

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be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.

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After the inspecting party has identified the documents it wants copied and

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produced, the producing party must designate the documents, or portions

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thereof, that qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or

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other proceeding to include designated material so that the other parties can

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ensure that only authorized individuals are present at those proceedings when

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such material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence

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of designated material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated, and

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the level of protection being asserted. The designator shall inform the court
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STIPULATED PROTECTIVE ORDER

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reporter of these requirements. Any transcript that is prepared before the

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expiration of the 21-day period for designation shall be treated during that

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period as if it had been designated HIGHLY CONFIDENTIAL–ATTORNEY

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EYES ONLY unless otherwise agreed. After the expiration of the 21-day

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period, the transcript shall be treated only as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to designate

7 does not, standing alone, waive protection under this Order. Upon timely assertion
8 or correction of a designation, all recipients must make reasonable efforts to ensure
9 that the

material is treated according to this Order.

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11 3.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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All challenges to confidentiality designations shall proceed under L.R. 37-1

13 through L.R. 37-4.
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15 4.

ACCESS TO DESIGNATED MATERIAL

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4.1

Basic Principles. A receiving party may use designated material only

17 for this litigation. Designated material may be disclosed only to the categories of
18 persons and under the conditions described in this Order.
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4.2

Disclosure

of

CONFIDENTIAL

Material

Without

Further

20 Approval. Unless otherwise ordered by the Court or permitted in writing by the
21 designator,

a

receiving

party

may

disclose

any

material

designated

22 CONFIDENTIAL only to:
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4.2.1 The receiving party’s outside counsel of record in this action,

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and employees of outside counsel of record to whom disclosure is reasonably

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necessary;

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4.2.2 If the receiving party is King Lombardi Acquisitions, Inc.

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(“KLA”), David Beyer, who is KLA’s franchise counsel, and employees of

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Quarles & Brady LLP to whom disclosure is reasonably necessary;
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STIPULATED PROTECTIVE ORDER

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4.2.3 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.4 Experts retained by the receiving party’s outside counsel of

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record to whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.5 The Court and its personnel;

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4.2.6 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.7 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to Be

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Bound (Exhibit A); and

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4.2.8 The author or recipient of a document containing the material, or

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

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

17 ONLY Without Further Approval. Unless permitted in writing by the designator,
18 a receiving party may disclose material designated HIGHLY CONFIDENTIAL –
19 ATTORNEY EYES ONLY without further approval only to:
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4.3.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom it is reasonably necessary to

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disclose the information;

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4.3.2 If the receiving party is KLA, David Beyer, who is KLA’s

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franchise counsel, and employees of Quarles & Brady LLP to whom

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disclosure is reasonably necessary

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4.3.3 The Court and its personnel;

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STIPULATED PROTECTIVE ORDER

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4.3.4 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A); and

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4.3.5 The author or recipient of a document containing the material, or

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

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

8 CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel
9 or Experts. Unless agreed to in writing by the designator:
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4.4.1 A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must

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first make a written request to the designator providing the full name of the

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in-house counsel, the city and state of such counsel’s residence, and such

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counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities insufficient detail to determine present or potential

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involvement in any competitive decision-making.

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4.4.2 A party seeking to disclose to an expert retained by outside

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counsel of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written

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request to the designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY information that the

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receiving party seeks permission to disclose to the expert, (2) sets forth the

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full name of the expert and the city and state of his or her primary residence,

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

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

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

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(including in connection with litigation) in the past five years, and (6)

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identifies (by name and number of the case, filing date, and location of court)
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STIPULATED PROTECTIVE ORDER

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any litigation where the expert has offered expert testimony, including by

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declaration, report, or testimony at deposition or trial, in the past five years. If

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the expert believes any of this information at (4) - (6) is subject to a

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confidentiality obligation to a third party, then the expert should provide

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whatever information the expert believes can be disclosed without violating

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any confidentiality agreements, and the party seeking to disclose the

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information to the expert shall be available to meet and confer with the

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designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to

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the identified in-house counsel or expert unless, within seven days of

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delivering the request, the party receives a written objection from the

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designator providing detailed grounds for the objection.
4.4.4 All challenges to objections from the designator shall proceed

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under L.R. 37-1 through L.R. 37-4.

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17 5.

PROTECTED

MATERIAL

SUBPOENAED

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PRODUCED IN OTHER LITIGATION

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5.1

OR

ORDERED

Subpoenas and Court Orders. This Order in no way excuses non-

20 compliance with a lawful subpoena or court order. The purpose of the duties
21 described in this section is to alert the interested parties to the existence of this
22 Order and to give the designator an opportunity to protect its confidentiality interests
23 in the court where the subpoena or order issued.
24

5.2

Notification Requirement. If a party is served with a subpoena or a

25 court order issued in other litigation that compels disclosure of any information or
26 items designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL
27 –ATTORNEY EYES ONLY that party must:
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STIPULATED PROTECTIVE ORDER

5.2.1 Promptly notify the designator in writing. Such notification shall

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include a copy of the subpoena or court order;

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5.2.2 Promptly notify in writing the party who caused the subpoena or

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

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

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a copy of this Order; and
5.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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5.3

Wait For Resolution of Protective Order. If the designator timely

10 seeks a protective order, the party served with the subpoena or court order shall not
11 produce any information designated in this action as CONFIDENTIAL or HIGHLY
12 CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the court
13 where the subpoena or order issued, unless the party has obtained the designator’s
14 permission. The designator shall bear the burden and expense of seeking protection
15 of its confidential material in that court.
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17 6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

18

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

19 designated material to any person or in any circumstance not authorized under this
20 Order, it must immediately (1) notify in writing the designator of the unauthorized
21 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the
22 designated material, (3) inform the person or persons to whom unauthorized
23 disclosures were made of all the terms of this Order, and (4) use reasonable efforts
24 to have such person or persons execute the Agreement to Be Bound (Exhibit A).
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26 7.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

27

PROTECTED MATERIAL

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STIPULATED PROTECTIVE ORDER

1

When a producing party gives notice that certain inadvertently produced

2 material is subject to a claim of privilege or other protection, the obligations of the
3 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
4 This provision is not intended to modify whatever procedure may be established in
5 an e-discovery order that provides for production without prior privilege review
6 pursuant to Federal Rule of Evidence 502(d) and (e).
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8 8.

FILING UNDER SEAL

9

Without written permission from the designator or a Court order, a party may

10 not file in the public record in this action any designated material. A party seeking to
11 file under seal any designated material must comply with L.R. 79-5.1. Filings may
12 be made under seal only pursuant to a court order authorizing the sealing of the
13 specific material at issue. The fact that a document has been designated under this
14 Order is insufficient to justify filing under seal. Instead, parties must explain the
15 basis for confidentiality of each document sought to be filed under seal. Because a
16 party other than the designator will often be seeking to file designated material,
17 cooperation between the parties in preparing, and in reducing the number and extent
18 of, requests for under seal filing is essential. If a receiving party’s request to file
19 designated material under seal pursuant to L.R. 79-5.1 is denied by the Court, then
20 the receiving party may file the material in the public record unless (1) the
21 designator seeks reconsideration within four days of the denial, or (2) as otherwise
22 instructed by the Court.
23 9.

FINAL DISPOSITION

24

Within 60 days after the final disposition of this action, each party shall return

25 all designated material to the designator or destroy such material, including all
26 copies, abstracts, compilations, summaries, and any other format reproducing or
27 capturing any designated material. The receiving party must submit a written
28 certification to the designator by the 60-day deadline that (1) identifies (by category,
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STIPULATED PROTECTIVE ORDER

1 where appropriate) all the designated material that was returned or destroyed, and
2 (2) affirms that the receiving party has not retained any copies, abstracts,
3 compilations, summaries, or any other format reproducing or capturing any of the
4 designated material. This provision shall not prevent counsel from retaining an
5 archival copy of all pleadings, motion papers, trial, deposition, and hearing trans6 cripts, legal memoranda, correspondence, deposition and trial exhibits, expert
7 reports, attorney work product, and consultant and expert work product, even if such
8 materials contain designated material. Any such archival copies remain subject to
9 this Order.
10

IT IS SO ORDERED.

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Dated: May 16, 2014

Hon. Robert N. Block
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

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AGREEMENT TO BE BOUND

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

4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Protective Order that was issued
6 by the United States District Court for the Central District of California on _______
7 [date] in the case of Viking Associates, Inc. v. T.D. Inc., et al., Case No. 8:14-cv8 0472 AG (RNBx). I agree to comply with and to be bound by all the terms of this
9 Protective Order, and I understand and acknowledge that failure to so comply could
10 expose me to sanctions and punishment for contempt. I solemnly promise that I will
11 not disclose in any manner any information or item that is subject to this Protective
12 Order to any person or entity except in strict compliance with this Order.
13

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

14 for the Central District of California for the purpose of enforcing this Order, even if
15 such enforcement proceedings occur after termination of this action.
16

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

17 _______________________________________ [print or type full address and
18 telephone number] as my California agent for service of process in connection with
19 this action or any proceedings related to enforcement of this Order.
20
21 Date: ___________________________
22 City and State where sworn and signed: _________________________________
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24 Printed name: ____________________
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[printed name]

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27 Signature: _______________________
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[signature]
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STIPULATED PROTECTIVE ORDER