Daniel Bustamante v. Invacare Corporation et al

Filing 22

PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order 19 . (mba)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DANIEL BUSTAMANTE,

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Plaintiff,

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[PROPOSED] PROTECTIVE ORDER

v.
INVACARE CORPORATION,

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Defendant.

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By and through their attorneys of record, the parties entered into a joint
stipulation and request that this court enter the following protective order:

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1.

PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or

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private information requiring special protection from public disclosure and from

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use for any purpose other than this litigation. Thus, the Court enters this

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Protective Order. This Order does not confer blanket protections on all

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disclosures or responses to discovery, and the protection it gives from public

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disclosure and use extends only to the specific material entitled to confidential

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treatment under the applicable legal principles. This Order does not

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automatically authorize the filing under seal of material designated under this

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Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file

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anything under seal. This Order does not govern the use at trial of material

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designated under this Order.

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2.

DESIGNATING PROTECTED MATERIAL
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Over-Designation Prohibited. Any party or non-party who

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designates information or items for protection under this Order as

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”)

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must only designate specific material that qualifies under the appropriate

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standards. To the extent practicable, only those parts of documents, items, or

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oral or written communications that require protection shall be designated.

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Designations with a higher confidentiality level when a lower level would

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suffice are prohibited. Mass, indiscriminate, or routinized designations are

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prohibited. Unjustified designations expose the designator to sanctions, including

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the Court’s striking all confidentiality designations made by that designator.

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Designation under this Order is allowed only if the designation is necessary to

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protect material that, if disclosed to persons not authorized to view it, would

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cause competitive or other recognized harm. Material may not be designated if it

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has been made public, or if designation is otherwise unnecessary to protect a

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secrecy interest. If a designator learns that information or items that it designated

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for protection do not qualify for protection at all or do not qualify for the level of

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protection initially asserted, that designator must promptly notify all parties that

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it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this

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Order requires the designator to affix the applicable legend (“CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY

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CONFIDENTIAL – SOURCE CODE”) to each page that contains protected

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material. For testimony given in deposition or other proceeding, the designator

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shall specify all protected testimony and the level of protection being asserted. It

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may make that designation during the deposition or proceeding, or may invoke, on

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the record or by written notice to all parties on or before the next business day, a

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right to have up to 21 days from the deposition or proceeding to make its

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designation.
2.2.1 A party or non-party that makes original documents or

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materials available for inspection need not designate them for protection

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until after the inspecting party has identified which material it would like

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copied and produced. During the inspection and before the designation, all

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material shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY. After the inspecting party has identified the documents it

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wants copied and produced, the producing party must designate the

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documents, or portions thereof, that qualify for protection under this Order.
2.2.2 Parties shall give advance notice if they expect a deposition

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

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can ensure that only authorized individuals are present at those proceedings

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

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exhibit at a deposition shall not in any way affect its designation.

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Transcripts containing designated material shall have a legend on the title

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page noting the presence of designated material, and the title page shall be

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

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have been designated, and the level of protection being asserted. The

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designator shall inform the court reporter of these requirements. Any

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transcript that is prepared before the expiration of the 21-day period for

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

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless

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otherwise agreed. After the expiration of the 21-day period, the transcript

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shall be treated only as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon

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timely assertion or correction of a designation, all recipients must make

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reasonable efforts to ensure that the material is treated according to this Order.

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3.

All challenges to confidentiality designations shall proceed under L.R.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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4.

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material

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only for this litigation. Designated material may be disclosed only to the

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categories of persons and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further

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Approval. Unless otherwise ordered by the Court or permitted in writing by the

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designator, a receiving party may disclose any material designated

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CONFIDENTIAL only to:
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

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reasonably necessary;

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4.2.2 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);
4.2.3 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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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or

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trial consultants, and professional vendors to whom disclosure is

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reasonably necessary, and who have signed the Agreement to Be Bound

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(Exhibit A);

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4.2.6 During their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the Agreement to

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Be Bound (Exhibit A); and
4.2.7 The author or recipient of a document containing the material,

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

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information.

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material

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Without Further Approval. Unless permitted in writing by the designator, a

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receiving party may disclose material designated HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE

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without further approval only to:
4.3.1 The receiving party’s outside counsel of record in this action

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

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necessary to disclose the information;
4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or

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trial consultants, and professional vendors to whom disclosure is

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reasonably necessary, and who have signed the Agreement to Be Bound

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(Exhibit A); and
4.3.4 The author or recipient of a document containing the material,

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

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information.

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4.4

Procedures for Approving or Objecting to Disclosure of

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or

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Experts. Unless agreed to in writing by the designator:
4.4.1 A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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

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

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

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and responsibilities in sufficient detail to determine present or potential

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involvement in any competitive decision-making. In-house counsel are not

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authorized to receive material designated HIGHLY CONFIDENTIAL –

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SOURCE CODE.
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

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE must first make a written request to

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

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE information that the receiving party

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seeks permission to disclose to the expert, (2) sets forth the full name of

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the expert and the city and state of his or her primary residence, (3)

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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

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expert has received compensation or funding for work in his or her areas

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of expertise (including in connection with litigation) in the past five years,

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and (6) identifies (by name and number of the case, filing date, and location

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of court) any litigation where the expert has offered expert testimony,

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including by declaration, report, or testimony at deposition or trial, in the

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past five years. If the expert believes any of this information at (4) - (6) is

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

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provide whatever information the expert believes can be disclosed without

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violating any confidentiality agreements, and the party seeking to disclose

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

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designator regarding any such confidentiality obligations.
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

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to 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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5.

SOURCE CODE
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Designation of Source Code. If production of source code is

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necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE

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CODE if it is, or includes, confidential, proprietary, or trade secret source code.

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5.2

Location and Supervision of Inspection. Any HIGHLY

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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made

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available for inspection, in a format allowing it to be reasonably reviewed and

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searched, during normal business hours or at other mutually agreeable times, at an

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office of the designating party’s counsel or another mutually agreeable location.

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The source code shall be made available for inspection on a secured computer in a

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secured room, and the inspecting party shall not copy, remove, or otherwise transfer

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any portion of the source code onto any recordable media or recordable device.

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The designator may visually monitor the activities of the inspecting party’s

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representatives during any source code review, but only to ensure that there is

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no unauthorized recording, copying, or transmission of the source code.

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5.3

Paper Copies of Source Code Excerpts. The inspecting party

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may request paper copies of limited portions of source code that are reasonably

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necessary for the preparation of court filings, pleadings, expert reports, other

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papers, or for deposition or trial. The designator shall provide all such source

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code in paper form, including Bates numbers and the label “HIGHLY

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CONFIDENTIAL – SOURCE CODE.”

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5.4

Access Record. The inspecting party shall maintain a record of any

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individual who has inspected any portion of the source code in electronic or

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paper form, and shall maintain all paper copies of any printed portions of the

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source code in a secured, locked area. The inspecting party shall not convert any

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of the information contained in the paper copies into any electronic format other

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than for the preparation of a pleading, exhibit, expert report, discovery document,

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deposition transcript, or other Court document. Any paper copies used during a

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deposition shall be retrieved at the end of each day and must not be left with a court

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reporter or any other unauthorized individual.

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6.

PROSECUTION BAR
Absent written consent from the designator, any individual who receives

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access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE information shall not be involved in the

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prosecution of patents or patent applications concerning the field of the invention

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of the patents-in-suit for the receiving party or its acquirer, successor,

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predecessor, or other affiliate during the pendency of this action and for one year

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after its conclusion, including any appeals. “Prosecution” means drafting,

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amending, advising on the content of, or otherwise affecting the scope or content

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of patent claims or specifications. These prohibitions shall not preclude counsel

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from participating in reexamination or inter partes review proceedings to challenge

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or defend the validity of any patent, but counsel may not participate in the drafting

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of amended claims in any such proceedings.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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7.1

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

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compliance with a lawful subpoena or court order. The purpose of the duties

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described in this section is to alert the interested parties to the existence of this

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the court where the subpoena or order issued.

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7.2

Notification Requirement. If a party is served with a subpoena

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or a court order issued in other litigation that compels disclosure of any

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information or items designated in this action as CONFIDENTIAL, HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL

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– SOURCE CODE, that party must:

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7.2.1 Promptly notify the designator in writing. Such notification

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shall include a copy of the subpoena or court order;

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7.2.2 Promptly notify in writing the party who caused the

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subpoena or order to issue in the other litigation that some or all of the

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material covered by the subpoena or order is subject to this Order. Such

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notification shall include a copy of this Order; and
7.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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7.3

Wait For Resolution of Protective Order. If the designator

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timely seeks a protective order, the party served with the subpoena or court order

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shall not produce any information designated in this action as CONFIDENTIAL,

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE before a determination by the court where

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the subpoena or order issued, unless the party has obtained the designator’s

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permission. The designator shall bear the burden and expense of seeking

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protection of its confidential material in that court.

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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has

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disclosed designated material to any person or in any circumstance not

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authorized under this Order, it must immediately (1) notify in writing the

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designator of the unauthorized disclosures, (2) use its best efforts to retrieve all

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unauthorized copies of the designated material, (3) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (4)

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use reasonable efforts to have such person or persons execute the Agreement to Be

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Bound (Exhibit A).

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure

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26(b)(5)(B). This provision is not intended to modify whatever procedure may be

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established in an e-discovery order that provides for production without prior

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privilege review pursuant to Federal Rule of Evidence 502(d) and (e).

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10.

FILING UNDER SEAL
Without written permission from the designator or a Court order, a party

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may not file in the public record in this action any designated material. A party

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seeking to file under seal any designated material must comply with L.R. 79-5.1.

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Filings may be made under seal only pursuant to a court order authorizing the

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sealing of the specific material at issue. The fact that a document has been

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designated under this Order is insufficient to justify filing under seal. Instead,

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parties must explain the basis for confidentiality of each document sought to be

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filed under seal. Because a party other than the designator will often be seeking

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to file designated material, cooperation between the parties in preparing, and in

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reducing the number and extent of, requests for under seal filing is

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essential. If a receiving party’s request to file designated material under seal

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pursuant to L.R. 79-5.1 is denied by the Court, then the receiving party may

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file the material in the public record unless (1) the designator seeks

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reconsideration within four days of the denial, or (2) as otherwise instructed by

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the Court.

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11.

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

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return all designated material to the designator or destroy such material, including

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all copies, abstracts, compilations, summaries, and any other format reproducing

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or capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60- day deadline that (1) identifies (by

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category, where appropriate) all the designated material that was returned or

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destroyed, and (2) affirms that the receiving party has not retained any copies,

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abstracts, compilations, summaries, or any other format reproducing or capturing

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any of the designated material. This provision shall not prevent counsel from

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retaining an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial

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exhibits, expert reports, attorney work product, and consultant and expert work

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product, even if such materials contain designated material. Any such archival

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copies remain subject to this Order.

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IT IS SO ORDERED.

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DATED: April 23, 2015

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Hon. Robert N. Block

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United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND

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

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__________________ [print or type full address], declare under penalty of

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perjury that I have read in its entirety and understand the Protective Order that was

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issued by the United States District Court for the Central District of California on

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_______________ [date] in the case of ___________________ [insert formal

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name of the case and the number and initials assigned to it by the court]. I

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agree to comply with and to be bound by all the terms of this Protective Order,

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

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sanctions and punishment for contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Protective

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Order to any person or entity except in strict compliance with this Order.
I further agree to submit to the jurisdiction of the United States

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District Court for the Central District of California for the purpose of enforcing

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this Order, even if such enforcement proceedings occur after termination of this

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action.
I hereby appoint ___________________________ [print or type full

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name] of _______________________________ [print or type full address and

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

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with this action or any proceedings related to enforcement of this Order.

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Date: _____________________
City and State where sworn and signed: _____________________________

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Printed name: ________________________
[printed name]
Signature: __________________________
[signature]
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