Genes Industry Inc v. Custom Blinds and Components Inc

Filing 20

PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order 19 . (sp)

1
2

KPI4TL!!1

3

N-

4
5
6’
7

-

MINIM

8
9
10
11

.L

12
13

0 MAW]

14
15
16

RUM

17
18
19

PRO

20
21
22
23

Ln
o

24

Ea ME

2E
2
27

/

2
II

I
4

EEO

4

f

8
9
10
11
12
13
FA

14
15
16
17

ROM

18
19
20
21
22
23
24
25
26
27
28

/

rA

2
3

1

pu,~

4
5
6

24J,

- "
-Ilz~

x
v

10

OAF wANY2,
ff

11

12

oil, MA

13

Roo

14
C

15
16
17

g

16
/J

/.//Jj

44; 4r/)a&’ /4f%i29 "Va

l

e

1

2C
21
2
2
2
2
2
2
2

W
.’’A

MNowffl
wa

,

L

e(IeP

1
2
2

On W
-0

3
4
5
6
7

gi

8
9
10
11
12
13
14
15
16

NEW
S

17
18
19
20
21
22
23
24
25
26

MOR

27
28

t’ke
-

;41&y

PROOF OF SERVICE BY MAIL
declare that I am dyer 18 years of age, and a

1f1’I3,

party to the attached herein cause of action, that I reside at California State Prison at
Corcoran, in the County of King, California.

Vi)

/f

My mailing address is:

.:

On _

-

I delivered to prison officials for mailing, at the

im se. aled envelope(s), with postage fully prepaid, and addressed to the following:

-

(3)

.

(4)

I declare under penalty of perjury that the fore gn
d a y of
my knowledge, Executed this
California State Prison, Corcoran,

.0 e and col7cct to the best of
20 ~ at
,

,

3:15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 1 of 12 Page ID #:129

1
2
3
4
5
6

KNEAFSEY & FRIEND LLP
SEAN M. KNEAFSEY (SBN 180863)
skneafsey()kneafsey friend. corn
JOYCE J. CHO (SBN 256163
i chokneafseyfriend.corn
BOO Wilshire Blvd., Suite 710
Los Angeles California 90017
Phone: [phone]
Fax: [phone]
Attorneys for Plaintiff
GENES INDUSTRY, INC.

7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

GENES INDUSTRY, INC., a California
corporation,
Plaintiff,

STIPULATED PROTECTIVE
ORDER

CUSTOM BLINDS AND
COMPONENTS, INC., a California
corporation,

Complaint Filed: March 26, 2015
Trial Date: November 29, 2016

13
14
15
16

VS.

Defendant.

17
18
19

CUSTOM BLINDS AND
COMPONENTS, INC., a California
corporation,

20
21
22
23
24

Case No.: 8:15-CV-00476-AG-E

Counter-Claimant,
VS.

GENES INDUSTRY, INC., a California
corporation,
Counter-Defendant.

25
26
27
28

STIPULATED PROTECTIVE ORDER

:15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 2 of 12 Page ID #:130

1
2

1. PURPOSE AND LIMITS OF THIS ORDER

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 responses

6

to discovery, and the protection it gives from public disclosure and use extends only

7

to the specific material entitled to confidential treatment under the applicable legal

8

principles. This Order does not automatically authorize the filing under seal of

9

material designated under this Order. Instead, the parties must comply with L.R. 79-

10

5.1 if they seek to file anything under seal. This Order does not govern the use at

11

trial of material designated under this Order.

12
13
14

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

15

Information or items for protection under this Order as "CONFIDENTIAL,"

16

’HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY," or "HIGHLY

17

ONFIDENTIAL - SOURCE CODE" (a "designator") must only designate

18

;pecific material that qualifies under the appropriate standards. To the extent

19

,racticable, only those parts of documents, items, or oral or written communications

20

;hat require protection shall be designated. Designations with a higher

21

onfidentiality level when a lower level would suffice are prohibited. Mass,

22

ndiscriminate, or routinized designations are prohibited. Unjustified designations

23

xpose the designator to sanctions, including the Court’s striking all confidentiality

24

lesignations made by that designator. Designation under this Order is allowed only

25

f the designation is necessary to protect material that, if disclosed to persons not

26

uthorized to view it, would cause competitive or other recognized harm. Material

27

nay not be designated if it has been made public, or if designation is otherwise

28

innecessary to protect a secrecy interest. If a designator learns that information or
STIPULATED PROTECTIVE ORDER
PROTECTIVE

Case I :15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 3 of 12 Page ID #:131

items that it designated for protection do not qualify for protection at all or do not
2

qualify for the level of protection initially asserted, that designator must promptly

3

notify all parties that it is withdrawing the mistaken designation.

4

2.2

Manner and Timing of Designations. Designation under this Order

5

requires the designator to affix the applicable legend ("CONFIDENTIAL,"

6

"HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY," or "HIGHLY

7

CONFIDENTIAL - SOURCE CODE") to each page that contains protected

8

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

9

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

10

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

11

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

12

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

13

2.2.1 A party or non-party that makes original documents or materials

14

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

15

inspecting party has identified which material it would like copied and

16

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

17

be treated as HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY.

18

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

19

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

20

thereof, that qualify for protection under this Order.

21

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

22

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

23

ensure that only authorized individuals are present at those proceedings when

24

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

25

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

26

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

27

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

28

pages (including line numbers as appropriate) that have been designated, and
-3STIPULATED PROTECTIVE ORDER

15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 4 of 12 Page ID #:132

1

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

2

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

3

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

4

period as if it had been designated HIGHLY CONFIDENTIAL -

5

ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of

6

the 21-day period, the transcript shall be treated only as actually designated.

7

2.3

Inadvertent Failures to Designate. An inadvertent failure to

8

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

9

assertion or correction of a designation, all recipients must make reasonable efforts

10 Ito ensure that the material is treated according to this Order.
11
12
13
14

3. CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1
through L.R. 3 7-4.

15
16
17

4. ACCESS TO DESIGNATED MATERIAL
4.1 Basic Principles. A receiving party may use designated material only

18

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

19

persons and under the conditions described in this Order.

20

4.2 Disclosure of CONFIDENTIAL Material Without Further

21

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

22

designator, a receiving party may disclose any material designated

23

CONFIDENTIAL only to:

24

4.2.1 The receiving party’s outside counsel of record in this action

25

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

26

necessary;

27
28
-4STIPULATED PROTECTIVE ORDER

Case :15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 5 of 12 Page ID #:133

1

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

2

whom disclosure is reasonably necessary, and who have signed the

3

Agreement to Be Bound (Exhibit A);

4

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

5

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

6

Agreement to Be Bound (Exhibit A);

7

4.2.4 The Court and its personnel;

8

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

9
10

consultants, and professional vendors to whom disclosure is reasonably
necessary, and who have signed the Agreement to Be Bound (Exhibit A);

11

4.2.6 During their depositions, witnesses in the action to whom

12

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

13

Bound (Exhibit A); and

14

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

15

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

16

4.3 Disclosure of HIGHLY CONFIDENTIAL - ATTORNEY EYES

17

ONLY and HIGHLY CONFIDENTIAL - SOURCE CODE Material Without

18

Further Approval. Unless permitted in writing by the designator, a receiving party

19

may disclose material designated HIGHLY CONFIDENTIAL - ATTORNEY

20

EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE without further

21

approval only to:

22

4.3.1 The receiving party’s outside counsel of record in this action and

23

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

24

disclose the information;

25

4.3.2 The Court and its personnel;

26

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

27

consultants, and professional vendors to whom disclosure is reasonably

28

necessary, and who have signed the Agreement to Be Bound (Exhibit A); and
-5STIPULATED PROTECTIVE ORDER

:15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 6 of 12 Page ID #:134

1

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

2

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

3

4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY

4

CONFIDENTIAL - ATTORNEY EYES ONLY or HIGHLY

5

CONFIDENTIAL - SOURCE CODE Material to In-House Counsel or

6

Experts. Unless agreed to in writing by the designator:

7

4.4.1 A party seeking to disclose to in-house counsel any material

8

designated HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY must

9

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

10

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

11

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

12

responsibilities in sufficient detail to determine present or potential

13

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

14

authorized to receive material designated HIGHLY CONFIDENTIAL -

15

SOURCE CODE.

16

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

17

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

18

CONFIDENTIAL - ATTORNEY EYES ONLY or HIGHLY

19

CONFIDENTIAL - SOURCE CODE must first make a written request to the

20

designator that (1) identifies the general categories of HIGHLY

21

CONFIDENTIAL - ATTORNEY EYES ONLY or HIGHLY

22

CONFIDENTIAL - SOURCE CODE information that the receiving party

23

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

24

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

25

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

26

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

27

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

28

(including in connection with litigation) in the past five years, and (6)
-6STIPULATED PROTECTIVE ORDER

15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 7 of 12 Page ID #:135

I

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

2

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

3

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

4

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

5

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

6

whatever information the expert believes can be disclosed without violating

7

any confidentiality agreements, and the party seeking to disclose the

8

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

9

designator regarding any such confidentiality obligations.

10

4.4.3 A party that makes a request and provides the information

11

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

12

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

13

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

14

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

15
16

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

17
18
19

5. SOURCE CODE
5.1

Designation of Source Code. If production of source code is

20

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

21

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

22

5.2

Location and Supervision of Inspection. Any HIGHLY

23

CONFIDENTIAL - SOURCE CODE produced in discovery shall be made

24

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

25

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

26

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

27

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

28

secured room, and the inspecting party shall not copy, remove, or otherwise transfer
-7STIPULATED PROTECTIVE ORDER

Case IP:15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 8 of 12 Page ID #:136

I

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

2

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

3

representatives during any source code review, but only to ensure that there is no

4

unauthorized recording, copying, or transmission of the source code.

5

5.3 Paper Copies of Source Code Excerpts. The inspecting party may

6

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

7

for the preparation of court filings, pleadings, expert reports, other papers, or for

8

deposition or trial. The designator shall provide all such source code in paper form,

9

including Bates numbers and the label "HIGHLY CONFIDENTIAL - SOURCE

10

CODE."
5.4

11

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

12

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

13

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

14

in a secured, locked area. The inspecting party shall not convert any of the

15

information contained in the paper copies into any electronic format other than for

16

the preparation of a pleading, exhibit, expert report, discovery document, deposition

17

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

18

be retrieved at the end of each day and must not be left with a court reporter or any

19

other unauthorized individual.

20
21

6. INTENTIONALLY OMITTED

22
23

7.

24

PRODUCED IN OTHER LITIGATION

25

PROTECTED MATERIAL SUBPOENAED OR ORDERED
7.1

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

26

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

27

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

28

-8STIPULATED PROTECTIVE ORDER

Casc :15-cv-0O476-AG-E Document 19-1 Filed 10/13/15 Page 9 of 12 Page ID #:137

1

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

2

in the court where the subpoena or order issued.

3

7.2

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

4

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

5

items designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL -

6

ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE,

7

that party must:

8

7.2.1 Promptly notify the designator in writing. Such notification shall

9

include a copy of the subpoena or court order;

10

7.2.2 Promptly notify in writing the party who caused the subpoena or order

11

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

12

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

13

copy of this Order; and

14

7.2.3 Cooperate with all reasonable procedures sought by the designator

15

whose material may be affected.

16

7.3 Wait For Resolution of Protective Order. If the designator timely

17

seeks a protective order, the party served with the subpoena or court order shall not

18

produce any information designated in this action as CONFIDENTIAL, HIGHLY

19

CONFIDENTIAL - ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL -

20

SOURCE CODE before a determination by the court where the subpoena or order

21

issued, unless the party has obtained the designator’s permission. The designator

22

shall bear the burden and expense of seeking protection of its confidential material

23 I in that court.
24
25
26

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

27

designated material to any person or in any circumstance not authorized under this

28

Order, it must immediately (1) notify in writing the designator of the unauthorized
-9STIPULATED PROTECTIVE ORDER

Case fl:15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 10 of 12 Page ID #:138

I

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

2

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

3

disclosures were made of all the terms of this Order, and (4) use reasonable efforts

4

to have such person or persons execute the Agreement to Be Bound (Exhibit A).

5

ra

9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

I PROTECTED MATERIAL
8
9

When a producing party gives notice that certain inadvertently produced
material is subject to a claim of privilege or other protection, the obligations of the

10

receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

ii

This provision is not intended to modify whatever procedure may be established in

12

an c-discovery order that provides for production without prior privilege review

13

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

14
15
16

I 10. FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

17

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

18

file under seal any designated material must comply with L.R. 79-5.1. Filings may

19

be made under seal only pursuant to a court order authorizing the sealing of the

20

specific material at issue. The fact that a document has been designated under this

21

Order is insufficient to justify filing under seal. Instead, parties must explain the

22

basis for confidentiality of each document sought to be filed under seal. Because a

23

party other than the designator will often be seeking to file designated material,

24

cooperation between the parties in preparing, and in reducing the number and extent

25

of, requests for under seal filing is essential. If a receiving party’s request to file

26

designated material under seal pursuant to L.R. 79-5.1 is denied by the Court, then

27

the receiving party may file the material in the public record unless (1) the

28

-10STIPULATED PROTECTIVE ORDER

Case

I:15- cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 11 of 12 Page ID #:139

1

designator seeks reconsideration within four days of the denial, or (2) as otherwise

2

instructed by the Court.

3
4
5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

compilations, summaries, or any other format reproducing or capturing any of the

13

designated material. This provision shall not prevent counsel from retaining an

14

archival copy of all pleadings, motion papers, trial, deposition, and hearing

15

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

16

reports, attorney work product, and consultant and expert work product, even if such

17

materials contain designated material. Any such archival copies remain subject to

18

this Order.

19

IT IS SO ORDERED.

20
21

DATED:
22
23

3
;4
/A
United States 48ictdc/Magistrate Judge

24
25

26
27
28
STIPULATED PROTECTIVE ORDER

Case :15-cv-00476-AG-E Document 19-1 Filed 10/13/15 Page 12 of 12 Page ID #:140

1

EXHIBIT A

2

AGREEMENT TO BE BOUND
I,

3

[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

8

and initials assigned to it by the court]. I agree to comply with and to be bound by

9

all the terms of this Protective Order, and I understand and acknowledge that failure

10

to so comply could expose me to sanctions and punishment for contempt. I solemnly

11

promise that I will not disclose in any manner any information or item that is subject

12

to this Protective Order to any person or entity except in strict compliance with this

13

Order.

[insert formal name of the case and the number

14

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

15

for the Central District of California for the purpose of enforcing this Order, even if

16

such enforcement proceedings occur after termination of this action.
I hereby appoint

17

[print or type full name] of
[print or type full address and

18
19

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

20

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

21
22 I

Date:

23

City and State where sworn and signed:

24

Printed name:
[printed name]

25

26
27

Signature:
[signature]

28
-12STIPULATED PROTECTIVE ORDER