Emazing Lights LLC v. Ramiro Montes De Oca et al

Filing 39

STANDING PROTECTIVE ORDER by Judge Andrew J. Guilford. (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EMAZING LIGHTS LLC,

SACV 15-1561-AG(Ex)

HONORABLE ANDREW J. GUILFORD

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v

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RAMIRO MONTES DE OCA, ET AL

STANDING PROTECTIVE ORDER

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1.

PURPOSE AND LIMITS OF THIS ORDER

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

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information requiring special protection from public disclosure and from use for any purpose

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other than this litigation. Thus, the Court enters this Protective Order. This Order does not

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confer blanket protections on all disclosures or responses to discovery, and the protection it

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gives from public disclosure and use extends only to the specific material entitled to

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confidential 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 Order. Instead,

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the parties must comply with L.R. 79-5.1 if they seek to file anything under seal. This Order

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does not govern the use at trial of material 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 designates

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information or items for protection under this Order as “CONFIDENTIAL,” “HIGHLY

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

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SOURCE CODE” (a “designator”) must only designate specific material that qualifies under

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

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or oral or written communications that require protection shall be designated. Designations

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with a higher confidentiality level when a lower level would suffice are prohibited. Mass,

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indiscriminate, or routinized designations are prohibited. Unjustified designations expose the

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designator to sanctions, including the Court’s striking all confidentiality designations made by

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that designator. Designation under this Order is allowed only if the designation is necessary

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

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competitive or other recognized harm. Material may not be designated if it has been made

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public, or if designation is otherwise unnecessary to protect a secrecy interest. If a designator

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learns that information or items that it designated for protection do not qualify for protection

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at all or do not qualify for the level of protection initially asserted, that designator must

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promptly notify all parties that it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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

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

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SOURCE CODE”) to each page that contains protected material. For testimony given in

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deposition or other proceeding, the designator shall specify all protected testimony and the

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level of protection being asserted. It may make that designation during the deposition or

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proceeding, or may invoke, on the record or by written notice to all parties on or before the

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next business day, a right to have up to 21 days from the deposition or proceeding to make

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its designation.

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2.2.1 A party or non-party that makes original documents or materials
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available for inspection need not designate them for protection until after the

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inspecting party has identified which material it would like copied and produced.

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During the inspection and before the designation, all material shall be treated as

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting

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party has identified the documents it wants copied and produced, the producing party

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must designate the documents, or portions thereof, that qualify for protection under

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this Order.

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

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

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only authorized individuals are present at those proceedings when such material is

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disclosed or used. The use of a document as an exhibit at a deposition shall not in any

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way affect its designation. Transcripts containing designated material shall have a

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legend on the title page noting the presence of designated material, and the title page

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shall be 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 designator shall

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inform the court reporter of these requirements. Any transcript that is prepared

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

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period as if it had been designated HIGHLY CONFIDENTIAL – ATTORNEY

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

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transcript shall be treated only as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to designate does

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not, standing alone, waive protection under this Order. Upon timely assertion or correction

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of a designation, all recipients must make reasonable efforts to ensure that the material is

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treated according to this Order.

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3.

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

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4.

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only for this

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litigation. Designated material may be disclosed only to the categories of persons and under

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the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further Approval.

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Unless otherwise ordered by the Court or permitted in writing by the designator, a receiving

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party may disclose any material designated CONFIDENTIAL only to:
4.2.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom disclosure is reasonably necessary;

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

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

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(Exhibit A);
4.2.3 Experts retained by the receiving party’s outside counsel of record to

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

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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 trial

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consultants, and professional vendors to whom disclosure is reasonably necessary, and

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who have signed the Agreement to Be Bound (Exhibit A);
4.2.6 During their depositions, witnesses in the action to whom disclosure is

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

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

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

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4.3

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Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without
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Further Approval. Unless permitted in writing by the designator, a receiving party may

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disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or

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HIGHLY CONFIDENTIAL – SOURCE CODE without further approval only to:

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

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

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the information;

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4.3.2 The Court and its personnel;

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

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consultants, and professional vendors to whom disclosure is reasonably necessary, and

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who have signed the Agreement to Be Bound (Exhibit A); and
4.3.4 The author or recipient of a document containing the material, or a

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

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in writing

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by the designator:

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

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first make a

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written request to the designator providing the full name of the in-house counsel, the

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city and state of such counsel’s residence, and such counsel’s current and reasonably

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foreseeable future primary job duties and responsibilities in sufficient detail to

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determine present or potential involvement in any competitive decision-making. In-

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house counsel are not authorized to receive material designated HIGHLY

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CONFIDENTIAL – SOURCE CODE.

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

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record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE must first make a written request to the designator that (1)
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identifies the general categories of HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE information that

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

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

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copy of the expert’s current resume, (4) identifies the expert’s current employer(s), (5)

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identifies each person or entity from whom the expert has received compensation or

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funding for work in his or her areas of expertise (including in connection with

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litigation) in the past five years, and (6) identifies (by name and number of the case,

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filing date, and location of court) any litigation where the expert has offered expert

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testimony, 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 subject to a

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

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information the expert believes can be disclosed without violating any confidentiality

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agreements, and the party seeking to disclose the information to the expert shall be

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available to meet and confer with the designator regarding any such confidentiality

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obligations.
4.4.3 A party that makes a request and provides the information specified in

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paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified in-

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house counsel or expert unless, within seven days of delivering the request, the party

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receives a written objection from the designator providing detailed grounds for the

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objection.
4.4.4 All challenges to objections from the designator shall proceed under

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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 necessary, a

party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or
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includes, confidential, proprietary, or trade secret source code.
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Location and Supervision of Inspection. Any HIGHLY

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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made available for

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inspection, in a format allowing it to be reasonably reviewed and searched, during normal

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business hours or at other mutually agreeable times, at an office of the designating party’s

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counsel or another mutually agreeable location. The source code shall be made available for

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inspection on a secured computer in a secured room, and the inspecting party shall not copy,

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remove, or otherwise transfer any portion of the source code onto any recordable media or

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recordable device. 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 no

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unauthorized recording, copying, or transmission of the source code.
5.3

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

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paper copies of limited portions of source code that are reasonably necessary for the

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preparation of court filings, pleadings, expert reports, other papers, or for deposition or trial.

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The designator shall provide all such source code in paper form, including Bates numbers

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and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.”
5.4

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

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who has inspected any portion of the source code in electronic or paper form, and shall

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maintain all paper copies of any printed portions of the source code in a secured, locked area.

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The inspecting party shall not convert any of the information contained in the paper copies

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into any electronic format other than for the preparation of a pleading, exhibit, expert report,

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

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during a 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 access to

HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE information shall not be involved in the prosecution

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of patents or patent applications concerning the field of the invention of the patents-in-suit

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for the receiving party or its acquirer, successor, predecessor, or other affiliate during the

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pendency of this action and for one year after its conclusion, including any appeals.

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“Prosecution” means drafting, amending, advising on the content of, or otherwise affecting

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the scope or content of patent claims or specifications. These prohibitions shall not preclude

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counsel from participating in reexamination or inter partes review proceedings to challenge or

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

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claims in any such proceedings.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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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 described in

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this section is to alert the interested parties to the existence of this Order and to give the

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designator an opportunity to protect its confidentiality interests in the court where the

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subpoena or order issued.

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7.2

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

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

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in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that party must:
7.2.1 Promptly notify the designator in writing. Such notification shall

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include a copy of the subpoena or court order;
7.2.2 Promptly notify in writing the party who caused the subpoena or order

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

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or order is subject to this Order. Such notification shall include a copy of this Order;

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and

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7.2.3 Cooperate with all reasonable procedures sought by the designator
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whose material may be affected.

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7.3

Wait For Resolution of Protective Order. If the designator timely seeks a

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protective order, the party served with the subpoena or court order shall not produce any

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information designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE before a

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determination by the court where the subpoena or order issued, unless the party has obtained

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the designator’s 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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UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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

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must immediately (1) notify in writing the designator of the unauthorized disclosures, (2) use

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its best efforts to retrieve all unauthorized copies of the designated material, (3) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of this

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Order, and (4) use reasonable efforts to have such person or persons execute the Agreement

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to Be Bound (Exhibit A).

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced material is

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subject to a claim of privilege or other protection, the obligations of the receiving parties are

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those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended

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to modify whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review pursuant to Federal Rule of Evidence 502(d) and

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(e).

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10.

FILING UNDER SEAL
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Without written permission from the designator or a Court order, a party may not file

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in the public record in this action any designated material. A party seeking to file under seal

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

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pursuant to a court order authorizing the sealing of the specific material at issue. The fact

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that a document has been designated under this Order is insufficient to justify filing under

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seal. Instead, 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 to file

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designated material, cooperation between the parties in preparing, and in reducing the

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number and extent of, requests for under seal filing is essential. If a receiving party’s

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

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

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

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instructed by the Court.

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

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

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compilations, summaries, and any other format reproducing or capturing any designated

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material. The receiving party must submit a written certification to the designator by the 60-

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day deadline that (1) identifies (by category, where appropriate) all the designated material

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that was returned or destroyed, and (2) affirms that the receiving party has not retained any

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

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

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

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain designated

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material. Any such archival copies remain subject to this Order.

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IT IS SO ORDERED.

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3/21/16
DATED: ____________

_____________________________________
United States District Judge Andrew J Guilford

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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 perjury that I have

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read in its entirety and understand the Protective Order that was issued by the United States

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District Court for the Central District of California on _______ [date] in the case of

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___________ [insert formal name of the case and the number and initials assigned to

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it by the court]. I agree to comply with and to be bound by all the terms of this Protective

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Order, 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 disclose in any

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manner any information or item that is subject to this Protective Order to any person or

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entity except in strict compliance with this Order.

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

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

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enforcement proceedings occur after termination of this action.

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

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Order.

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Date: ___________________________

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City and State where sworn and signed: _________________________________

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Printed name: ____________________
[printed name]

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Signature: _______________________

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[signature]
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