Klean Waters Inc v. Orange County Sanitation District et al

Filing 189

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 187 (see attached) (jm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KLEAN WATERS INC.; TIM MILLER; SHAUN MILLER; 12 Plaintiffs, 13 PROTECTIVE ORDER PURSUANT TO STIPULATION v. 14 CASE NO.: 8:15-cv-00627-JVS-FFM ORANGE COUNTY SANITATION DISTRICT, a government entity organized under the laws of the State of California; et al., 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 1 A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 not confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable 10 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 11 that this Stipulated Protective Order does not entitle them to file confidential 12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 13 followed and the standards that will be applied when a party seeks permission from 14 the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve trade secrets, customer and pricing lists and 17 other valuable research, development, commercial, financial, technical and/or 18 proprietary information for which special protection from public disclosure and from 19 use for any purpose other than prosecution of this action is warranted. 20 confidential and proprietary materials and information consist of, among other things, 21 confidential business or financial information, information regarding confidential 22 business practices, manufacturing processes, engineering information or other 23 confidential research, development, or commercial information (including information 24 implicating privacy rights of third parties), otherwise generally unavailable to the 25 public, or which may be privileged or otherwise protected from disclosure under state 26 or federal statutes, court rules, case decisions, or common law. Accordingly, to 27 expedite the flow of information, to facilitate the prompt resolution of disputes over 28 confidentiality of discovery materials, to adequately protect information the parties are 1 STIPULATED PROTECTIVE ORDER Such 1 entitled to keep confidential, to ensure that the parties are permitted reasonable 2 necessary uses of such material in preparation for and in the conduct of trial, to 3 address their handling at the end of the litigation, and serve the ends of justice, a 4 protective order for such information is justified in this matter. It is the intent of the 5 parties that information will not be designated as confidential for tactical reasons and 6 that nothing be so designated without a good faith belief that it has been maintained in 7 a confidential, non-public manner, and there is good cause why it should not be part of 8 the public record of this case. 9 2. DEFINITIONS 10 2.1 Action: means the above-entitled proceeding. 11 2.2 Challenging Party: a Party or Non-Party that challenges the designation 12 13 of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for protection 15 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good 16 Cause Statement. 17 2.4 18 19 Counsel: Outside Counsel of Record and In-House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, regardless of 23 the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced or 25 generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 28 expert witness or as a consultant in this Action. 2 STIPULATED PROTECTIVE ORDER 1 2.8 In-House Counsel: attorneys who are employees of a party to this 2 Action. In-House Counsel does not include Outside Counsel of Record or any other 3 outside counsel. 4 2.9 5 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: attorneys who are not employees of a party 7 to this Action but are retained to represent or advise a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm which 9 has appeared on behalf of that party, and includes support staff. 10 2.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 14 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation support 16 services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 2.14 Protected Material: 20 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 21 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 22 from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or extracted 26 from Protected Material; (2) all copies, excerpts, summaries, or compilations of 27 Protected Material; and (3) any testimony, conversations, or presentations by Parties 28 or their Counsel that might reveal Protected Material. 3 STIPULATED PROTECTIVE ORDER 1 Any use of Protected Material at trial shall be governed by the orders of the trial 2 judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order shall remain in effect until a Designating Party agrees 6 otherwise in writing or a court order otherwise directs. Final disposition shall be 7 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 8 or without prejudice; and (2) final judgment herein after the completion and 9 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 10 including the time limits for filing any motions or applications for extension of time 11 pursuant to applicable law. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under this 15 Order must take care to limit any such designation to specific material that qualifies 16 under the appropriate standards. The Designating Party must designate for protection 17 only those parts of material, documents, items, or oral or written communications that 18 qualify so that other portions of the material, documents, items, or communications 19 for which protection is not warranted are not swept unjustifiably within the ambit of 20 this Order. 21 Mass, indiscriminate, or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper 23 purpose (e.g., to unnecessarily encumber the case development process or to impose 24 unnecessary expenses and burdens on other parties) may expose the Designating Party 25 to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it 27 designated for protection do not qualify for protection, that Designating Party must 28 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 STIPULATED PROTECTIVE ORDER 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic documents, 8 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 9 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 10 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 11 portion or portions of the material on a page qualifies for protection, the Producing 12 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 13 markings in the margins). 14 A Party or Non-Party that makes original documents available for inspection 15 need not designate them for protection until after the inspecting Party has indicated 16 which documents it would like copied and produced. During the inspection and before 17 the designation, all of the material made available for inspection shall be deemed 18 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 19 copied and produced, the Producing Party must determine which documents, or 20 portions thereof, qualify for protection under this Order. Then, before producing the 21 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 22 to each page that contains Protected Material. If only a portion or portions of the 23 material on a page qualifies for protection, the Producing Party also must clearly 24 identify the protected portion(s) (e.g., by making appropriate markings in the 25 margins). 26 (b) for testimony given in depositions that the Designating Party identify the 27 Disclosure or Discovery Material on the record, before the close of the deposition all 28 protected testimony. 5 STIPULATED PROTECTIVE ORDER 1 (c) for information produced in some form other than documentary and for any 2 other tangible items, that the Producing Party affix in a prominent place on the 3 exterior of the container or containers in which the information is stored the legend 4 “CONFIDENTIAL.” If only a portion or portions of the information warrants 5 protection, the Producing Party, to the extent practicable, shall identify the protected 6 portion(s). 7 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 8 failure to designate qualified information or items does not, standing alone, waive the 9 Designating Party’s right to secure protection under this Order for such material. 10 Upon timely correction of a designation, the Receiving Party must make reasonable 11 efforts to assure that the material is treated in accordance with the provisions of this 12 Order. 13 6. 14 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 15 designation of confidentiality at any time that is consistent with the Court’s 16 Scheduling Order. 17 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 18 resolution process under Local Rule 37-1 et seq. by serving the requisite meet and 19 confer letter. If, following the conference of counsel, the parties fail to reach an 20 agreement regarding the designations, then counsel for the Designating Party shall 21 commence preparation of the joint stipulation pursuant to Local Rule 37-2, et seq. If 22 the Designating Party does not submit its portion of the joint stipulation to the 23 Challenging Party within 14 days following the conclusion of the conference of 24 counsel, then the confidential designation is deemed waived or withdrawn, and the 25 challenged document will no longer be deemed Protected Material. 26 6.3 The burden of persuasion in any such challenge proceeding shall be on 27 the Designating Party. Frivolous designations, and those made for an improper 28 purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) 6 STIPULATED PROTECTIVE ORDER 1 may expose the Designating Party to sanctions. Frivolous challenges, and those made 2 for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens 3 on other parties) may expose the Challenging Party to sanctions. Unless the 4 Designating Party has waived or withdrawn the confidentiality designation, all parties 5 shall continue to afford the material in question the level of protection to which it is 6 entitled under the Producing Party’s designation until the Court rules on the challenge. 7 7. 8 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 9 disclosed or produced by another Party or by a Non-Party in connection with this 10 Action only for prosecuting, defending, or attempting to settle this Action. Such 11 Protected Material may be disclosed only to the categories of persons and under the 12 conditions described in this Order. When the Action has been terminated, a Receiving 13 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 14 Protected Material must be stored and maintained by a Receiving Party at a 15 location and in a secure manner that ensures that access is limited to the persons 16 authorized under this Order. 17 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the court or permitted in writing by the Designating Party, a 19 Receiving Party may disclose any information or item designated “CONFIDENTIAL” 20 only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 22 employees of said Outside Counsel of Record to whom it is reasonably necessary to 23 disclose the information for this Action; 24 25 26 (b) the officers, directors, and employees (including In-House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; (c) Experts (as defined in this Order) of the Receiving Party to whom 27 disclosure is reasonably necessary for this Action and who have signed the 28 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 STIPULATED PROTECTIVE ORDER 1 (d) the court and its personnel; 2 (e) court reporters and their staff; 3 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 4 to whom disclosure is reasonably necessary for this Action and who have signed the 5 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 6 7 custodian or other person who otherwise possessed or knew the information; 8 (h) during their depositions, witnesses, and attorneys for witnesses, in the 9 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 10 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 11 not be permitted to keep any confidential information unless they sign the 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 13 by the Designating Party or ordered by the court. Pages of transcribed deposition 14 testimony or exhibits to depositions that reveal Protected Material may be separately 15 bound by the court reporter and may not be disclosed to anyone except as permitted 16 under this Stipulated Protective Order; 17 (i) in preparation for deposition or trial testimony, witnesses and attorneys of 18 witnesses in the Action to whom disclosure is reasonably necessary provided: (1) the 19 potential witness or deponent is requested to sign the form attached as Exhibit A 20 hereto; and (2) they will not be permitted to keep any confidential information unless 21 they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 22 otherwise agreed by the Designating Party or ordered by the court; and (j) any mediator or settlement officer, and their supporting personnel, mutually 23 24 agreed upon by any of the parties engaged in settlement discussions. 25 8. 26 OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 27 If a Party is served with a subpoena or a court order issued in other litigation 28 that compels disclosure of any information or items designated in this Action as 8 STIPULATED PROTECTIVE ORDER 1 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall 2 3 include a copy of the subpoena or court order; 4 (b) promptly notify in writing the party who caused the subpoena or order to 5 issue in the other litigation that some or all of the material covered by the subpoena or 6 order is subject to this Protective Order. Such notification shall include a copy of this 7 Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by 8 9 the Designating Party whose Protected Material may be affected. 10 If the Designating Party timely seeks a protective order, the Party served with 11 the subpoena or court order shall not produce any information designated in this 12 action as “CONFIDENTIAL” before a determination by the court from which the 13 subpoena or order issued, unless the Party has obtained the Designating Party’s 14 permission. The Designating Party shall bear the burden and expense of seeking 15 protection in that court of its confidential material and nothing in these provisions 16 should be construed as authorizing or encouraging a Receiving Party in this Action to 17 disobey a lawful directive from another court. 18 9. 19 IN THIS LITIGATION A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 20 (a) The terms of this Order are applicable to information produced by a Non- 21 Party in this Action and designated as “CONFIDENTIAL.” Such information 22 produced by Non-Parties in connection with this litigation is protected by the 23 remedies and relief provided by this Order. Nothing in these provisions should be 24 construed as prohibiting a Non-Party from seeking additional protections. 25 (b) In the event that a Party is required, by a valid discovery request, to 26 produce a Non-Party’s confidential information in its possession, and the Party is 27 subject to an agreement with the Non-Party not to produce the Non-Party’s 28 confidential information, then the Party shall: 9 STIPULATED PROTECTIVE ORDER 1 (1) promptly notify in writing the Requesting Party and the Non-Party 2 that some or all of the information requested is subject to a confidentiality agreement 3 with a Non-Party; (2) 4 promptly provide the Non-Party with a copy of the Stipulated 5 Protective Order in this Action, the relevant discovery request(s), and a reasonably 6 specific description of the information requested; and (3) make the information requested available for inspection by the Non- 7 8 Party, if requested. 9 (c) If the Non-Party fails to seek a protective order from this court within 14 10 days of receiving the notice and accompanying information, the Receiving Party may 11 produce the Non-Party’s confidential information responsive to the discovery request. 12 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce 13 any information in its possession or control that is subject to the confidentiality 14 agreement with the Non-Party before a determination by the court. Absent a court 15 order to the contrary, the Non-Party shall bear the burden and expense of seeking 16 protection in this court of its Protected Material. 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 21 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 22 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 23 persons to whom unauthorized disclosures were made of all the terms of this Order, 24 and (d) request such person or persons to execute the “Acknowledgment and 25 Agreement to Be Bound” that is attached hereto as Exhibit A. 26 11. 27 PROTECTED MATERIAL 28 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a Producing Party gives notice to Receiving Parties that certain 10 STIPULATED PROTECTIVE ORDER 1 inadvertently produced material is subject to a claim of privilege or other protection, 2 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 3 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 4 may be established in an e-discovery order that provides for production without prior 5 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 6 parties reach an agreement on the effect of disclosure of a communication or 7 information covered by the attorney-client privilege or work product protection, the 8 parties may incorporate their agreement in the stipulated protective order submitted to 9 the court. 10 12. 11 12 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 13 12.2 Right to Assert Other Objections. By stipulating to the entry of this 14 Protective Order no Party waives any right it otherwise would have to object to 15 disclosing or producing any information or item on any ground not addressed in this 16 Stipulated Protective Order. Similarly, no Party waives any right to object on any 17 ground to use in evidence of any of the material covered by this Protective Order. 18 12.3 Filing Protected Material. A Party that seeks to file under seal any 19 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 20 only be filed under seal pursuant to a court order authorizing the sealing of the 21 specific Protected Material at issue. If a Party’s request to file Protected Material 22 under seal is denied by the court, then the Receiving Party may file the information in 23 the public record unless otherwise instructed by the court. 24 13. FINAL DISPOSITION 25 After the final disposition of this Action, as defined in paragraph 4, within 60 26 days of a written request by the Designating Party, each Receiving Party must return 27 all Protected Material to the Producing Party or destroy such material. As used in this 28 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 11 STIPULATED PROTECTIVE ORDER 1 summaries, and any other format reproducing or capturing any of the Protected 2 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 3 must submit a written certification to the Producing Party (and, if not the same person 4 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 5 category, where appropriate) all the Protected Material that was returned or destroyed 6 and (2)affirms that the Receiving Party has not retained any copies, abstracts, 7 compilations, summaries or any other format reproducing or capturing any of the 8 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 9 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 10 legal memoranda, correspondence, deposition and trial exhibits, expert reports, 11 attorney work product, and consultant and expert work product, even if such materials 12 contain Protected Material. Any such archival copies that contain or constitute 13 Protected Material remain subject to this Protective Order as set forth in Section 4. 14 14. 15 measures including, without limitation, contempt proceedings and/or monetary 16 sanctions. Any violation of this Order may be punished by any and all appropriate 17 18 IT IS SO ORDERED. 19 20 21 22 DATED: November 7, 2016 /s/ FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury that 6 I have read in its entirety and understand the Stipulated Protective Order that was 7 issued by the United States District Court for the Central District of California on 8 November __, 2016 in the case of Klean Waters, Inc. v. Orange County Sanitation 9 District, et al., USDC, Central District of California, Case No. SACV 15-627 JVS 10 (FFMx). I agree to comply with and to be bound by all the terms of this Stipulated 11 Protective Order and I understand and acknowledge that failure to so comply could 12 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 13 that I will not disclose in any manner any information or item that is subject to this 14 Stipulated Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court 17 for the Central District of California for the purpose of enforcing the terms of this 18 Stipulated Protective Order, even if such enforcement proceedings occur after 19 termination of this action. I hereby appoint __________________________ [print or 20 type full name] of _______________________________________ [print or type full 21 address and telephone number] as my California agent for service of process in 22 connection with this action or any proceedings related to enforcement of this 23 Stipulated Protective Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 27 Printed name: _______________________________ 28 Signature: __________________________________ 13 STIPULATED PROTECTIVE ORDER

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