Leocorsa, LLC v. Apache Golf, Inc. et al

Filing 19

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott: See document for further information. (lwag)

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NOTE: CHANGES HAVE BEEN
MADE TO THIS DOCUMENT

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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LEOCORSA, LLC, a Nevada Limited
Liability Company,
Plaintiff,

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vs.

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APACHE GOLF, INC., a California
Corporation; and DOES 1-10 inclusive,

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Defendants.
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Case No.: 8:16-cv-849-JVS (KESx)
Hon. James V. Selna
[PROPOSED] STIPULATED
PROTECTIVE ORDER
[Discovery Document: Referred to
Magistrate Judge Karen E. Scott]
Date:
Time:
Ctrm:

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STIPULATED ORDER GOVERNING THE DESIGNATION AND HANDLING

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OF CONFIDENTIAL MATERIALS

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The Plaintiff in this case is Leocorsa, LLC. Defendant in this case is Apache

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Golf, Inc. Plaintiff and Defendant are referred to individually as a “Party” and

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collectively as the “Parties.”

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1.

A.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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STIPULATED PROTECTIVE ORDER
CASE NO.: 8:16-cv-849-JVS-KES

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from

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the court to file material under seal.

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B.

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This action is likely to involve trade secrets, customer information and

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information for which special protection from public disclosure and from use for any

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purpose other than prosecution of this action is warranted. Fed. R.Civ. P.26(c)(7) does

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not limit its reach to “trade secrets,” but also allows for protection of “confidential

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commercial information.” Customer lists, as well as sales and revenue information

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qualify as “confidential commercial information.” Parties are not public companies

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and therefore maintain their financial records as confidential and do not disclose such

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information publicly. Parties assert that they are competitors, and as such they would

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suffer competitive harm if certain confidential commercial information were disclosed

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directly to their respective presidents/owners rather than counsels. Parties believe that

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the disclosure of all or some of the information listed below might result in an unfair

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competitive advantage if disseminated to competitors. Such confidential and

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proprietary materials and information consist of, among other things:

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GOOD CAUSE STATEMENT

a) confidential business and financial information, including profit margins,
sales data, profits and confidential client information;
STIPULATED PROTECTIVE ORDER

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CASE NO.: 8:16-cv-849-JVS-KES

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b) information regarding confidential business practices, including marketing
strategies;

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c) other confidential research, including technical, consumer and market
research;

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d) any commercial information implicating privacy rights of third parties;

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e) any commercial information implicating privacy rights of third parties; and

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e) information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes, court

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rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to keep

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confidential, to ensure that the parties are permitted reasonable necessary uses of such

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material in preparation for and in the conduct of trial, to address their handling at the

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end of the litigation, and serve the ends of justice, to conduct discovery of non-parties,

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including competitors and employees of competitors, a protective order for such

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information is justified in this matter. It is the intent of the parties that information

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will not be designated as confidential for tactical reasons and that nothing be so

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designated without a good faith belief that it has been maintained in a confidential,

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non-public manner, and there is good cause why it should not be part of the public

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record of this case.

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2.

DEFINITIONS

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2.1

Action: This pending lawsuit with the Case No.: 8:16-cv-849-JVS-KES.

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2.2

Challenging Party: a Party or Non-Party that challenges the designation

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of information or items under this Order.

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2.3

“CONFIDENTIAL” Information or Items: all information in whatever

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form such as oral, written, documentary, tangible, intangible, electronic, or digitized

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now or hereafter in existence that:

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(a) is regarded by Disclosing Party as being confidential, personal, private, or
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proprietary in nature such that it qualifies for protection under Fed. R Civ. P

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26(c)(1)(G) and/or is the subject of efforts that are reasonable under the circumstances

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to maintain its secrecy;

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(b) is protected under the Uniform Trade Secrets Act, California Civil Code

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section 3426, et. seq., in that such information derives independent economic value,

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actual or potential, from not being generally known to, and not being readily

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ascertainable by proper means, by other persons who can obtain economic value from

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its disclosure or use; and

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(c) as specified above in the Good Cause Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as their

support staff).

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2.5

Designating Party: a Party or Non-Party that designates information or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or CONFIDENTIAL—Attorneys’ Eyes Only”

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2.6

Disclosure of Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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2.8

House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.9

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

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2.10 Outside Counsel of Record: attorneys who are not employees of a party

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to this Action but are retained to represent or advise a party to this Action and have
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appeared in this Action on behalf of that party or are affiliated with a law firm which

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has appeared on behalf of that party, and includes support staff.

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2.11 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “CONFIDENTIAL—Attorneys’ Eyes Only”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or extracted

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from Protected Material; (2) all copies, excerpts, summaries, or compilations of

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the trial

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judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
STIPULATED PROTECTIVE ORDER

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or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating Party

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to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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Any Party or third party may designate Confidential Information as

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“CONFIDENTIAL—Attorney’s Eyes Only,” if such party represents its good faith

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belief that: (a) the criteria set forth in paragraph 2.2.3 above is met; and (b) disclosure

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of such information to another party in this suit would cause the Disclosing Party

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substantial harm.

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5.2

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Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix at a minimum, the legend “CONFIDENTIAL” or

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“CONFIDENTIAL—Attorneys’ Eyes Only”, to each page that contains protected

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material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and before

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the designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the legend “CONFIDENTIAL”

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or CONFIDENTIAL—Attorneys’ Eyes Only” to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

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(b) for testimony given in depositions, that the Designating Party identify the

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Disclosure or Discovery Material as Confidential” or “Confidential—Attorneys’ Eyes

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Only” on the record, at any point before the close of the deposition by so stating on

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the record and identifying the level of protection desired.

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(c) for information produced in some form other than documentary and for any
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other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL” or CONFIDENTIAL—Attorneys’ Eyes Only.” If only a portion

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or portions of the information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be on

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the Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived or

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withdrawn the confidentiality designation, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the challenge.

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7.

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LEVELS OF CONFIDENTIALITY
1.

Any

information

designated

as

“CONFIDENTIAL”

or

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“CONFIDENTIAL—Attorneys’ Eyes Only” shall be restricted in accordance with the

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following levels of confidentiality:
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2.

“CONFIDENTIAL—Attorneys’ Eyes Only”—Information designated as

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“Confidential—Attorneys’ Eyes Only” shall be restricted to viewing, copying by, and

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disclosure to:

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a.

Counsel acting on behalf of the Parties in this matter, excluding House

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Counsel;

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b.

The Court including all personnel of the Court;

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c.

Witnesses during deposition;

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d.

Experts and consultants necessarily retained by Counsel of record in this

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litigation and their colleagues, advisors, and secretarial and clerical assistants who are
actively assisting in the preparation, evaluation, and trial of this Litigation;

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e.

Professional vendors;

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f.

Court reporters and other persons involved in recording testimony in this

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Litigation;

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g.

Any other person to whom disclosure is required by law; and

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h.

Insurers of the Parties and their counsel.

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3.

Before information designated as “Confidential—Attorneys’ Eyes Only,”

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or contents thereof, are disclosed to any person specified in paragraphs IV(2)(d) or

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7(2)(e) above, counsel for the Party disclosing such information shall provide to those

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persons a copy of this Protective Order, and such person must agree (i) to be bound by

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the terms hereof by signing the “Acknowledgment and Agreement to be Bound”

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attached hereto as Exhibit A. Information designated as “Confidential—Attorneys’

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Eyes Only” shall not be viewed by the Receiving Party or by anyone acting on its

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behalf, other than its respective counsel, except as set forth above.

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4.

“CONFIDENTIAL”—Information designated as “Confidential” shall be

restricted to viewing, copying by, and disclosure to:

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a.

All “CONFIDENTIAL—Attorneys’ Eyes Only” persons;

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b.

All employees, officers, directors and House counsel of each Party of

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record. It is not necessary that each such person sign this Protective Order, provided
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that the Receiving Party has previously notified all employees, officers, and directors

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of the existence of this Protective Order, its terms, and the consequences of an

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unauthorized disclosure; and

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c.
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Witnesses or potential witnesses in this Litigation.

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending, or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a Receiving

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Party must comply with the provisions of section 15 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to in accordance with Par. 7.4 and any information or item designated

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“CONFIDENTIAL—Attorneys’ Eyes Only” in accordance with Par. 7.2:

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9.

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OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL” or CONFIDENTIAL—Attorneys’ Eyes Only” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or
STIPULATED PROTECTIVE ORDER

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

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Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” or CONFIDENTIAL—Attorneys’ Eyes Only” before a

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determination by the court from which the subpoena or order issued, unless the Party

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has obtained the Designating Party’s permission. The Designating Party shall bear the

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burden and expense of seeking protection in that court of its confidential material and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from another court.

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10.

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IN THIS LITIGATION

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

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(a) The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL” or CONFIDENTIAL—

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Attorneys’ Eyes Only” Such information produced by Non-Parties in connection with

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this litigation is protected by the remedies and relief provided by this Order. Nothing

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in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3) make the information requested available for inspection by the NonParty, if requested.

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(c) If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request.

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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce

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any information in its possession or control that is subject to the confidentiality

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agreement with the Non-Party before a determination by the court. Absent a court

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order to the contrary, the Non-Party shall bear the burden and expense of seeking

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protection in this court of its Protected Material.

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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12.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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The inadvertent or unintentional disclosure of protected information (e.g.,

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“Confidential” or “Confidential—Attorneys’ Eyes Only” or any other privileged or

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protected item, regardless of whether the item was so designated at the time of

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

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protection or privilege, either as to the specific information disclosed therein or on the
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same or related subject matter.

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). However, any such disclosure shall be presumed to be

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inadvertent.

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13.

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DISCUSSIONS

GOOD FAITH DISCLOSURE TO FACILITATE THE SETTLEMENT

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In the interest of promoting settlement discussions, the Parties agree to make

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exceptions to the disclosures of certain confidential documents on a case by case

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basis, including but not limited to financial information. Before violating any

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confidential designations, each Party agrees to obtain the consent of the other Party.

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14.

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MISCELLANEOUS
14.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.

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14.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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14.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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

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specific Protected Material at issue. If a Party's request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information in

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the public record unless otherwise instructed by the court.

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15.

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FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60
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days of a written request by the Designating Party, each Receiving Party must return

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all Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party

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must submit a written certification to the Producing Party (and, if not the same person

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or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by

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category, where appropriate) all the Protected Material that was returned or destroyed

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and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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

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

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

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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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STIPULATED PROTECTIVE ORDER

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16.

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

Any violation of this Order may be punished by any and all appropriate

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: August 5, 2016

KOPPEL PATRICK
PHILPOTT

HEYBL

&

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By:

/s/Gregory Z. Boger
Brian J. Philpott
Corey A.Donaldson
Gregory Z. Boger
Attorneys for Plaintiff
LEOCORSA, LLC

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Dated: August 5, 2016

GAUNTLETT & ASSOCIATES

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By:

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/s/ James A. Lowe
David A. Gauntlett
James A. Lowe
Attorneys for Defendants
APACHE GOLF, Inc.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: August 10, 2016

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_____________________________________
KAREN E. SCOTT
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

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CASE NO.: 8:16-cv-849-JVS-KES

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EXHIBIT A

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STIPULATED PROTECTIVE ORDER

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CASE NO.: 8:16-cv-849-JVS-KES

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

[print or type full name]

, of

[print or type full address]

,

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declare under penalty of perjury that I have read in its entirety and understand the

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Protective Order that was issued by the United States District Court for the Central

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District of California on [_____________ _____, 201__] in the case of Leocorsa,

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LLC v. Apache Golf, Inc et al., Case Number 8:16-cv--JLS-KES (the “Protective

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Order”). I agree to comply with and to be bound by all the terms of the 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 in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to the Protective

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Order to any person or entity except in strict compliance with the provisions of the

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Protective Order.

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

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

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

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action.

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I hereby appoint

[print or type full name]

of

[print or

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type full address and telephone number]

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process in connection with this action or any proceedings related to enforcement of

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the Protective Order.

as my California agent for service of

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature

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STIPULATED PROTECTIVE ORDER

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CASE NO.: 8:16-cv-849-JVS-KES