HaloSongs, Inc. et al v. Edward Christopher Sheeran

Filing 70

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 59 . (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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)
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Plaintiffs,
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vs.
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EDWARD CHRISTOPHER SHEERAN p/k/a )
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ED SHEERAN, ED SHEERAN LIMITED,
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NATHAN CABLE TOURING LLP, JOHN
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“JOHNNY” MCDAID, SONY/ATV SONGS )
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LLC, SONY/ATV MUSIC PUBLISHING
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(UK) LIMITED, POLAR PATROL MUSIC
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LIMITED d/b/a POLAR PATROL MUSIC
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PUBLISHING, WARNER MUSIC UK LTD., )
WARNER MUSIC GROUP CORPORATION )
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d/b/a ASYLUM RECORDS, and ATLANTIC )
RECORDING CORPORATION d/b/a
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ATLANTIC,
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Defendants.
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---------------------------------------------------------HALOSONGS, INC.,
MARTIN HARRINGTON, and
THOMAS LEONARD,

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Case No. 8:16-cv-01062 JVS-JCG
STIPULATED
PROTECTIVE ORDER

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The above-captioned Plaintiffs and Defendants (collectively, the “Parties”)

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hereby stipulate to the entry of a Protective Order in the above-captioned action as

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follows:

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1.

PURPOSES AND LIMITATIONS AND GOOD CAUSE STATEMENT

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A.

Purposes and Limitations

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This action involves discovery which may require the production of confidential,

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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 in 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 the

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court to file material under seal.

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B.

Good Cause Statement

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This action involves confidential information including but not limited to

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recording, publishing, and royalty agreements as well as revenue information, financial

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statements and sensitive commercial agreements. Such information is highly private

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and merits special protection from the public disclosure or use for any purpose other

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than in this action. This confidential business and financial information includes

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information generally unavailable to the public, or which may be privileged or

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otherwise protected from disclosure under state or federal statutes, court rules, case

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

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facilitate the prompt resolution of disputes over confidentiality of discovery materials,
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to adequately protect information the Parties are entitled to keep confidential, to ensure

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that the Parties are permitted reasonable necessary uses of such material in preparation

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for and in the conduct of any proceedings in this matter, to address their handling at the

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end of the litigation, and serve the ends of justice, a protective order for such

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

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

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without a good faith belief that it has been maintained in a confidential, non-public

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

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2.

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DEFINITIONS
2.1

Action: HaloSongs, Inc. v. Sheeran, United States District Court, Central

District of California, Case No. 8:16-cv-01062 JVS-JCG.
2.2

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

information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of how

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it is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), that contain sensitive financial, personal and/or

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competitive commercial information, and as specified above in the Good Cause

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Statement.

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2.4

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

support staff).
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.”

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2.6

Disclosure or 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 Action 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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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.
2.9

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

other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party to

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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.
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).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.
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) and

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their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL.”
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
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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties 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

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trial 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 otherwise

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

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later of (1) dismissal of all claims and defenses in this Action, with or without

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prejudice; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this Action, including the time limits

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for filing any motions or applications for extension of time 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 for

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

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Order. 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 purpose

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

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

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated

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or ordered, Disclosure or Discovery Material that qualifies for protection under this

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

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” (hereinafter

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“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins). A Party or Non-Party that makes original documents

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

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inspecting Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must affix

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the “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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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 on the record, before the close of the deposition all

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protected testimony, or within 21 days of receiving the final transcript, notify the
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Receiving Party in writing that it is designating the testimony, or portions thereof, as

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Confidential.

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(c)

for information produced in some form other than documentary and for

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any 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.” If only a portion or portions of the information warrants

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protection, the Producing Party, to the extent practicable, shall identify the protected

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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. Upon

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

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

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose

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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.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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 13 below (FINAL DISPOSITION).

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

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

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under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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Party may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(b)

the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this Action. To the

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extent a Party to this action is a natural person, disclosure may be made to such person

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if reasonably necessary for this action;

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(c)

Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g)

the author or recipient of a document containing the information or a

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

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(h)

during their depositions, witnesses ,and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

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not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

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by the Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and

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(i)

any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” 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;
(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

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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

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by the Designating Party whose Protected Material may be affected. If the Designating

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

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shall not produce any information designated in this action as “CONFIDENTIAL”
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before a determination by the court from which the subpoena or order issued, unless

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

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bear the burden and expense of seeking protection in that court of its confidential

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material and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from

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another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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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.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting

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a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall: (1) promptly notify in writing the

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Requesting Party and the Non-Party that some or all of the information requested is

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subject to a confidentiality agreement with a Non-Party; (2) promptly provide the Non-

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Party with a copy of the Stipulated Protective Order in this Action, the relevant

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discovery request(s), and a reasonably specific description of the information

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requested; and (3) make the information requested available for inspection by the Non-

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Party, 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 Party in possession of

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the Non-Party’s confidential information may produce such information unless doing

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so would be inconsistent with the Party’s preexisting agreement with the Non-Party. If

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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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10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 writing

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the Designating Party of the unauthorized disclosures; (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material; (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order; and (d)

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request such person or persons to execute the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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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). This provision is not intended to modify whatever procedure

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

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted to

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the court.

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12.

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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.
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12.2 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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12.3 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 specific

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Protected Material at issue. If a Party’s request to file Protected Material under seal is

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denied by the court, then the Receiving Party may file the information in the public

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record unless otherwise instructed by the court.
12.4 Non-Waiver of Jurisdictional Defenses. Certain of the Defendants have

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moved to dismiss the First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(2)

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based on this Court’s lack of personal jurisdiction over them. By agreeing to this

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Stipulated Protective Order, those Defendants expressly reserve, and do not waive,

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their objection to this Court’s jurisdiction over them and do not consent to the

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jurisdiction of this Court.

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13.

FINAL DISPOSITION

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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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14.

VIOLATIONS OF THIS ORDER
Any violation of this Order may be punished by any and all appropriate

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

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD

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PRYOR CASHMAN LLP

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Dated: November 15, 2016

By:

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/s/ Michael J. Niborski
Michael J. Niborski
[e-mail]
Attorneys for Defendants

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KING & BALLOW

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/s/ Paul Duvall
Paul Duvall
[e-mail]

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Attorneys for Plaintiffs

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Dated: November 15, 2016

By:

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ORDER

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: November 21, 2016

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_________________________________
Judge Jay C. Gandhi
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, [NAME] of [ADDRESS], declare under penalty of perjury that I have

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read in its entirety and understand the Stipulated Protective Order that was

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

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on [DATE] in the case of HaloSongs, Inc. v. Sheeran, United States District

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Court, Central District of California, Case No. 8:16-cv-01062 JVS-JCG.

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I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply

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could expose me to sanctions and punishment in the nature of contempt. I

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

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that is subject to this Stipulated Protective Order to any person or entity except

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in strict compliance with the provisions of this Order.

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

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

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action. I hereby appoint [NAME] of [ADDRESS] as my

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California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ________________________________

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City and State where sworn and signed:

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_____________________________________

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Signature: ____________________________

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Printed Name: _________________________

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