Hani Naim Saeed Sharaf v. Starbuzz Tobacco Inc.

Filing 52

AMENDED PROTECTIVE ORDER Governing Disclosure of Confidential Information 51 by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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HANI NAIM SAEED SHARAF, a
foreign national,

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Plaintiff,

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vs.
STARBUZZ TOBACCO, INC., a
California corporation,
Defendant

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AND CONSOLIDATED ACTION

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Case No.: 8:14-cv-00541-JVS-DFMx
Honorable Douglas F. McCormick
[PROPOSED] AMENDED
PROTECTIVE ORDER
GOVERNING DISCLOSURE OF
CONFIDENTIAL INFORMATION

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WHEREAS, Plaintiff HANI NAIM SAEED SHARAF (“HANI”) and

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Defendant STARBUZZ TOBACCO, INC. (“STARBUZZ”), and Plaintiff SALIM

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ELHALWANI (“S.ELHALWANI”) (all of the above being, collectively, the

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“Parties) believe that in the course of this action certain information, documents,

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and testimony likely to be disclosed and produced through discovery may

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constitute or incorporate confidential commercial information, research or
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Amended Protective Order Governing Disclosure of Confidential Information

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development and/or trade secrets within the meaning of Federal Rule of Civil

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Procedure 26(c); and

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WHEREAS, the Parties believe that entry of a protective order pursuant to

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Federal Rule of Civil Procedure 26(c) would best protect their interests while

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facilitating discovery in this action; and

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WHEREAS, the Court finds good cause exists for the entry of this Amended

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Protective Order in this action pursuant to Federal Rule of Civil Procedure 26(c) in

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order to protect confidential commercial information, research and development,

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and/or trade secrets.

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IT IS HEREBY ORDERED, pursuant to Federal Rule of Civil Procedure

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26(c), that this Amended Protective Order shall govern the treatment and handling

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of any information produced or disclosed by any Party or non-Party (“the

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Producing Party”) to this action, including without limitation, Rule 26 disclosures,

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documents, depositions, deposition exhibits, interrogatory responses, responses to

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requests for admission, and testimony (such information and/or documents shall

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hereinafter be referred to as “Confidential Material”) provided it is designated (or,

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within the appropriate time limitation, is pending designation) as being

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Confidential Material as required by this Amended Protective Order.

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It is further ordered that:

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1.

Any Producing Party may designate any Confidential Material as

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“CONFIDENTIAL” if such producing party in good faith believes that such

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Confidential Material contains confidential or proprietary information, including

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information in written, oral, electronic, graphic, pictorial, audiovisual, or other

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form, whether it is a document, information contained in a document, item

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produced for inspection, information revealed during a deposition, information

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revealed in an interrogatory answer, or otherwise.

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2.

Any Producing Party may designate any Confidential Material as

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” if such producing party in
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Amended Protective Order Governing Disclosure of Confidential Information

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good faith believes that such Confidential Material contains confidential,

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commercially sensitive, or proprietary information related to any of the following:

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technical data, research and development information, marketing or other business

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plans, product or service information, customer information, trade secrets,

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competitive information, or financial information of the Producing Party,

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including, without limitation, sales and cost information or any other information

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of such sensitivity to warrant “Confidential—Attorneys’ Eyes Only” treatment,

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including, information in written, oral, electronic, graphic, pictorial, audiovisual, or

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other form, whether it is a document, information contained in a document, item

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produced for inspection, information revealed during a deposition, information

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revealed in an interrogatory answer, or otherwise.

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3.

A Producing Party may designate any document or other tangible

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information or thing as “Confidential” or “Confidential—Attorneys’ Eyes Only”

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by stamping a conspicuous place thereof with the legend CONFIDENTIAL or

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CONFIDENTIAL—ATTORNEYS’ EYES ONLY, respectively. For example, in

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the case of a document, a producing party may so mark the first page of a

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multipage document and each page thereafter that actually contains Confidential

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Material. In the case of other tangible items, a producing party may so mark any

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appropriate location. For example, in the case of a computer disk, a producing

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party may so mark the disk cover.

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4.

The terms of this Amended Protective Order are applicable to

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Confidential Material produced by a non-party and designated “CONFIDENTIAL”

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or “CONFIDENTIAL—ATTORNEYS EYES ONLY” only when the producing

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non-party has a proprietary interest or other right in such Confidential Material, or

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where the producing non-party is contractually obligated to maintain the

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confidentiality of such Confidential Material. A producing party may designate

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documents, information, or things disclosed at a deposition of a producing party or

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one of its present or former officers, directors, employees, agents, or independent
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experts retained for purposes of this litigation as “Confidential” or “Confidential—

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Attorneys’ Eyes Only” on the record during the deposition; or by notifying all

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parties in writing of the specific item so designated, within twenty one (21) days

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of receiving a copy of the deposition transcript, of the specific exhibits or lines and

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pages of the transcript that are believed in good faith to contain Confidential

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Material.

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a.

If a producing party designates such materials as “Confidential”

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or “Confidential—Attorneys’ Eyes Only” on the record, the court reporter

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shall indicate on the cover page of the transcript that the transcript includes

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Confidential or Confidential—Attorneys’ Eyes Only information, shall list

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the pages and lines numbers and/or exhibits of the transcript on or in which

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such information is contained, and shall bind the transcript in separate

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portions containing Confidential, Confidential—Attorneys’ Eyes Only, and

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non-Confidential material. Further, during the period in which such

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Confidential or Confidential—Attorneys’ Eyes Only information is

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discussed during the deposition, any person present during the deposition

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who is not a Qualified Person, as defined below, or the court reporter, shall

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be excluded from that portion of the deposition.

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b.

A deposition transcript and the exhibits thereto shall be

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presumed Confidential—Attorneys’ Eyes Only in their entirety until twenty

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one (21) days after receipt of the transcript by the producing party. If, after

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the deposition is taken, the producing party designates any portion of the

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deposition transcript or exhibits as “Confidential” or “Confidential—

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Attorneys’ Eyes Only” by giving written notice as described above, all

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persons receiving notice of such designation shall affix the same to the face

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of their copy or copies of the transcript. At the expiration of the twenty one

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(21) day period, the transcript and exhibits shall automatically revert to non-

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Confidential status, except those portions that have been designated on the
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record or in writing as “Confidential” or “Confidential—Attorneys’ Eyes

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Only.” Nothing in this paragraph is intended to restrict any Party’s right to

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attend depositions pursuant to paragraph 7 hereof.
c.

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A non-producing party may designate documents, information,

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or things disclosed at a deposition as “Confidential” or “Confidential—

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Attorneys’ Eyes Only” in the same manner as a producing party if it has a

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good faith basis for claiming a proprietary interest or other right in the

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Confidential Material.

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5.

Material designated as confidential under this Amended Protective

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Order, the information contained therein, and any summaries, copies, abstracts, or

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other documents derived in whole or in part from material designated as

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confidential (hereinafter “Confidential Material”) shall be used only for the

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purpose of the prosecution, defense, or settlement of this action, and for no other

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purpose, except that a Party may seek permission from another court to use

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Confidential Material produced under this Amended Protective Order provided

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said Party gives advance notice to the parties whose materials are sought to be used

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and provided no disclosure of such Confidential Material is made until such other

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court grants the request for permission. The restrictions contained in this

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paragraph No. 5 may be modified by written agreement of the parties, but such

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modifications will not be considered part of this order unless approved by the

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Court. Nothing in this paragraph shall operate to bar motions in limine or similar

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motion to exclude the use of any document in any action between the Parties on

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any appropriate and available basis.

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6.

Confidential Material produced pursuant to this Amended Protective

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Order may be disclosed or made available only to the Court, to counsel for a Party

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(including the paralegal, clerical, and secretarial staff employed by such counsel),

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and to the “qualified persons” designated below:

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a.

HANI;
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Amended Protective Order Governing Disclosure of Confidential Information

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b.

S.ELHALWANI;

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c.

three officers or directors of STARBUZZ, or full-time

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employees designated in writing as a representative of STARBUZZ who has

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supervisory responsibility for this matter and is necessary to the prosecution,

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defense, or settlement of this action;
d.

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experts or consultants (together with their clerical staff) retained

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by such counsel to assist in the prosecution, defense, or settlement of this

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action, including outside photocopying, imaging, data base, graphics or

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design services retained by outside counsel in connection with this action;

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e.

court reporter(s) employed in this action; and

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f.

any other person as to whom the parties in writing agree.

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Prior to receiving any Confidential Material, each “qualified person” defined

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in (a), (b), (c) and (d) above shall be provided with a copy of this Amended

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Protective Order and shall execute and be bound by this Amended Protective Order

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by signing a nondisclosure agreement in the form annexed hereto as Exhibit A, a

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copy of which shall be provided forthwith to counsel for each other party.

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7.

Depositions may be taken in the presence of any persons, including

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Parties, but any Party may request that (a) non-qualified persons leave the room for

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responses containing any Confidential Material; and (b) Parties leave the room for

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responses containing CONFIDENTIAL – ATTORNEY’S EYES ONLY

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information. No Party shall be entirely excluded from any deposition.

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8.

Material designated “CONFIDENTIAL – ATTORNEY’S EYES

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ONLY” and the information contained therein, shall be disclosed only to the Court,

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to outside counsel for the Parties (including the paralegal, clerical, and secretarial

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staff employed by such counsel) and to the “qualified persons” listed in

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subparagraphs 6(c) through (e) above, but shall not be disclosed to a Party, or to an

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officer, director or employee or a Party, except as provided above or unless

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otherwise agreed in writing or ordered by the Court. If disclosure of Attorney’s
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Eyes Only Material is made pursuant to this paragraph, all other provisions in this

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order with respect to confidentiality shall also apply.

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9.

Copies of Confidential or Confidential—Attorneys’ Eyes Only

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material may be submitted to the Court in connection with any proceedings,

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motions or hearings, provided that such materials are filed along with an

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application to have those materials filed under seal. The application must

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show good cause for the under seal filing. To the extent possible, only those

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portions of a filing with the Court that contain material designated as

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“Confidential” or “Confidential—Attorneys’ Eyes Only” shall be filed under seal.

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To the extent that no Confidential or Confidential—Attorneys’ Eyes Only

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information is disclosed, the parties may refer to, and quote from, documents

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designated as “Confidential” or “Confidential—Attorneys’ Eyes Only” in

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pleadings, motions, briefs, affidavits, or exhibits filed with the Court, without the

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need to file such pleadings, motions, briefs, affidavits, or exhibits under seal. A

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Party’s counsel shall not unilaterally decide that material that the other Party

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designated as “Confidential” or “Confidential—Attorneys’ Eyes Only” does not

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contain any Confidential or Confidential—Attorneys’ Eyes Only information. If a

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Party’s counsel disagrees with a designation, that counsel shall follow the

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procedures described in paragraph 11 of this Order to challenge the designation.

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10.

In the event that any Confidential Material is used in any court

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proceeding in this action, the Party using such material shall take all steps

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reasonably available to protect its confidentiality during such use.

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At any stage of these proceedings, should any party object to a

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designation of any information, documents, or things as “Confidential” or

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“Confidential—Attorneys’ Eyes Only,” the Party shall provide written notice of its

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objection with the designation. The parties and/or the producing party shall first

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attempt to resolve such objection in good faith on informal basis. If the objection

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is not thereby resolved, the objecting Party may apply for a ruling from the Court
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Amended Protective Order Governing Disclosure of Confidential Information

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pursuant to Local Rule 37 determining whether the materials in question are

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properly designated under the terms of this Amended Protective Order. Until the

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Court makes such determination, all material designated as “Confidential” or

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“Confidential—Attorneys’ Eyes Only” shall be treated as such.

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12.

Nothing in this Amended Protective Order shall preclude any party to

the lawsuit or their attorneys from:
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Showing materials designated as “Confidential” or

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“Confidential—Attorneys’ Eyes Only” to an individual who either prepared

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or reviewed the document prior to the filing of this action, or is shown by the

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document to have received the document;
b.

Disclosing or using, in any manner or for any purpose, any

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information, documents, or things from the Party’s own files that the Party

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itself designated as “Confidential” or “Confidential—Attorneys’ Eyes

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Only”;

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c.

Disclosing or using, in any manner or for any purpose, any

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information, documents, or things that were obtained from a source other

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than discovery or to which a Party has a right of access independent of

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discovery, or that were already known to such Party by lawful means, prior

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to obtaining from or disclosure by, the other Party in the action, provided,

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however, that the alternate source of such information, documents or things

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was not under an obligation of confidentiality (as evidenced by a writing) to

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a Party in the litigation at the time such information, documents or things

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were obtained; or

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d.

Disclosing or using, in any manner or for any purpose, any

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information, document, or thing that is at the time of production or

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disclosure, or subsequently becomes, through no wrongful act or failure to

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act on the part of the receiving party, generally available to the relevant

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public through publication or otherwise or is already rightfully in the

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possession of the receiving party at the time of production; or

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13.

If either party is served with a subpoena or similar process, from any

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entity whatsoever, directing that Party to produce any materials designated as

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“Confidential” or “Confidential—Attorneys’ Eyes Only” not so designated by that

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Party, the counsel for that Party shall immediately give counsel for the designating

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party written notice, by hand delivery or facsimile transmission, of the fact of such

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service so that the designating Party may seek a protective order or otherwise act to

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protect the confidentiality of the designated materials.

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14.

This Amended Protective Order is entered solely for the purpose of

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facilitating the exchange of documents and information between the parties to this

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action without involving the Court unnecessarily in the process. Nothing in this

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Amended Protective Order nor the production of any information or document

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under the terms of this Amended Protective Order nor any proceedings pursuant to

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this Amended Protective Order shall be deemed to have the effect of an admission

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or waiver by either Party or of altering the confidentiality or non-confidentiality of

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any such document or information or altering any existing obligation of any Party

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or the absence thereof.

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15.

This Amended Protective Order shall survive the final termination of

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this action, to the extent that the information contained in Confidential Material is

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not or does not become known to the public, and the Court shall retain jurisdiction

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to resolve any dispute concerning the use of information disclosed hereunder.

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Within thirty (30) days of the conclusion of this action, including any appeals,

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counsel for the parties shall assemble and return to each other all documents,

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material and deposition transcripts designated as confidential and all copies of

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same, or shall certify the destruction thereof. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all pleadings, motion papers,

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transcripts, legal memoranda, correspondence or attorney work product, even if
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Amended Protective Order Governing Disclosure of Confidential Information

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such material contain Confidential Material, for the period of one (1) year. Any

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such archival copies that contain or constitute Confidential Material remain subject

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to this Amended Protective Order.

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16.

The inadvertent or unintentional disclosure by the Producing Party of

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attorney-client privileged information or attorney work-product, either by way of

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document production or deposition testimony, shall not be deemed a waiver of

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privilege for such information, provided that the Producing Party promptly makes

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a good-faith representation that such production was inadvertent or mistaken and

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takes prompt remedial action to withdraw the disclosure. Within three (3) business

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days of receiving a written request to do so from the Producing Party, the

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Receiving Party shall return to the Producing Party any documents or tangible

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items that the Producing Party represents are covered by a claim of attorney-client

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privilege or work product immunity and were inadvertently or mistakenly

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produced. The receiving party shall also destroy any extra copies or summaries of,

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or notes relating to, any such inadvertently or mistakenly produced information,

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and certifying compliance with this provision; provided, however, that this

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Amended Protective Order shall not preclude the Party returning such information

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from making a motion to compel production of the returned information pursuant

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to Local Rule 37. The Producing Party shall retain copies of all returned

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documents and tangible items for further disposition and, if such a motion is filed,

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shall provide copies to the Court of the documents, item or information which is

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the subject of the motion. In the event that a Producing Party discovers in a

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deposition, inadvertently or unintentionally disclosed documents containing

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attorney-client privileged information or attorney work-product, the Producing

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Party may make a request on the record for the receiving party to return the

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documents or tangible items that the Producing Party represents 1) are covered by

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a claim of attorney-client privilege or work product immunity and 2) were

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inadvertently or mistakenly produced; in which event, the receiving party shall be
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precluded from deposing a witness with respect to such inadvertently or mistakenly

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produced documents, other than to explore the basis for a claim of privilege or

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work product.

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The inadvertent or unintentional disclosure by the Producing Party of

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“CONFIDENTIAL” and/or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”,

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information either by way of document production or deposition testimony,

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regardless of whether the information was so designated at the time of disclosure,

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shall not be deemed a waiver in whole or in part of a Party’s claim of

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confidentiality as to the information disclosed. Any such inadvertently or

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unintentionally disclosed “CONFIDENTIAL” and/or “CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY” information, not designated as such pursuant to

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paragraph 1 or 2, shall be designated as “CONFIDENTIAL” or

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“CONFIDENTIAL-ATTORNEYS’ EYES ONLY”, as soon as reasonably possible

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after the Producing Party becomes aware of the inadvertent or unintentional

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disclosure and provides written notice to the Receiving Parties. The Receiving

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Party shall thereafter mark and treat the materials as “CONFIDENTIAL” or

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“CONFIDENTIAL-ATTORNEYS’ EYES ONLY” as appropriate, and such

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materials shall be fully subject to this Amended Protective Order as if they had

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been initially so designated.
GOOD CAUSE STATEMENT

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18.

In discovery in this case, the parties will be required to exchange

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competitively sensitive information about the opposing parties’ business activities

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to which they and third parties would not otherwise have access, including

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information regarding the parties’ business proprietary and/or confidential

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information. Allowing the parties or third parties to use such competitively

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sensitive information would cause harm to the competitive position of the

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disclosing party. The parties seek the entry of this Amended Protective Order to

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Amended Protective Order Governing Disclosure of Confidential Information

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prevent the unauthorized use or dissemination of confidential information

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produced in discovery during this action by competitors.

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a.

No document, information, or thing shall be designated

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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unless good cause exists for such designation under the standards set forth in

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Phillips v. G.M. Corp., 307 F.2d 1206, 1209 (9th Cir. 2002) and other

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relevant authority. Good cause exists for the designation of information as

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” when the information

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has not been made public and falls into one of the categories identified in

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paragraph 2 hereof.
b.

Good cause exists for the designation of information as

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“CONFIDENTIAL” when the information has not been revealed to the

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public and the information falls into one of the categories identified in

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paragraph 1 hereof.

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c.

The Parties shall use reasonable efforts to minimize the amount

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of material designated as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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d.

This Amended Protective Order applies to such

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“CONFIDENTIAL” and “CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” information furnished in this litigation regardless of the form in

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which it is transmitted and regardless whether the information is furnished

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by a party or third party. Such information may be contained in documents,

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written discovery responses, declarations, deposition testimony, exhibits,

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and other materials or deposition testimony provided by any Party.

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IT IS SO ORDERED at Santa Ana, California this 5th day of August, 2015.

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___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge
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Amended Protective Order Governing Disclosure of Confidential Information

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HANI NAIM SAEED SHARAF, a
) Case No.: 8:14-cv-00541-JVS-DFM
foreign national,
) Honorable Douglas F. McCormick
)
Plaintiff,
) NON-DISCLOSURE
) AGREEMENT IN RE AMENDED
vs.
) PROTECTIVE ORDER
) GOVERNING DISCLOSURE OF
STARBUZZ TOBACCO, INC., a
) CONFIDENTIAL INFORMATION
California corporation,
)
)
Defendant
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)
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)
AND CONSOLIDATED ACTION

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DECLARATION

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I, _____________________________, declare:

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1.

I reside at ____________________________________________

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I am employed as [state position] ________________________________ by [name and

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address of employer]

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2.

.

I am aware that an Amended Protective Order dated ________________

2015 has been entered in Case No. 8:14-cv-00541-JVS-DFM in the United States

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Non-Disclosure Agreement In Re Amended Protective Order Governing Disclosure of Confidential Information

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District Court for the Central District of California. A copy of that Amended Protective

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Order has been given to me.

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3.

I hereby certify that I am one of the persons allowed under paragraphs 6 or

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8 of the Amended Protective Order to receive access to information, documents, or things

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designated “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,”

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respectively. I also agree to be bound by the terms of the Amended Protective Order,

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specifically including the requirement that information, documents, and things I may

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receive that are designated as “CONFIDENTIAL” and/or “CONFIDENTIAL-

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ATTORNEYS’ EYES ONLY,” and all copies, notes, summaries, and other records made

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regarding such information, documents, and things, shall be disclosed to no one other

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than persons specifically allowed by paragraphs 6 or 8 of the Amended Protective Order,

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respectively, to have access to such information.

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4.

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Protective Order.

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5.

I agree to act in good faith in carrying out my duties under the Amended

I understand that any use or disclosure by me which is contrary to my

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undertakings in this declaration will constitute a violation of the Amended Protective

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Order and may subject me to sanctions by the Court for contempt.

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6.

I hereby consent the Court’s continuing exercise of jurisdiction over me for

the purpose of enforcing the Amended Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

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Dated: ______________

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Non-Disclosure Agreement In Re Amended Protective Order Governing Disclosure of Confidential Information