Mass Probiotics, Inc. v. Aseptic Technology, LLC

Filing 29

STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 28 . (ec)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

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MASS PROBIOTICS, INC.,
a Delaware Corporation,
Plaintiff,

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v.

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CASE NO. SA CV 16-1394-DOC (GJS)

STIPULATED PROTECTIVE
ORDER1

ASEPTIC TECHNOLOGY, LLC,
a California Limited Liability
Company,

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Defendant.

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Pursuant to Fed. R. Civ. P. 26(c), the parties (each a “Party,” and together,

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the “Parties”) to this litigation (the “Litigation”), by their counsel of record,

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stipulate and move the Court for the entry of a Stipulated Protective Order (the

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“Stipulation”) in the above-captioned matter concerning the treatment of Protected

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Material.

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This Stipulated Protective Order substantially incorporates language from the model protective order provided
under Magistrate Judge Gail J. Standish’s Procedures.

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1.

INTRODUCTION
A. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,
proprietary or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the Parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The Parties acknowledge that this
Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure and use extends
only to the limited information or items that are entitled to confidential treatment
under the applicable legal principles.
B. GOOD CAUSE STATEMENT
The Parties agree that discovery in this action is likely to involve trade
secrets, confidential processes and formulas, valuable research, technical and
proprietary information for which special protection from public disclosure and
from use for any purpose other than prosecution of this action is warranted. Such
confidential and proprietary materials and information consist of, among other
things, confidential business or financial information, information regarding
confidential business practices, or other confidential research, development, or
commercial information (including information implicating privacy rights of third
parties), information otherwise generally unavailable to the public, or which may be
privileged or otherwise protected from disclosure under state or federal statutes,
court rules, case decisions, or common law. Accordingly, to expedite the flow of
information, to facilitate the prompt resolution of disputes over confidentiality of
discovery materials, to adequately protect information the parties are entitled to
keep confidential, to ensure that the parties are permitted reasonable necessary uses
of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order
for such information is justified in this matter. It is the intent of the Parties that
information will not be designated as confidential for tactical reasons and that
nothing be so designated without a good faith belief that it has been maintained in a
confidential, non-public manner, and there is good cause why it should not be part
of the public record of this case.

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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER

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SEAL

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The Parties further acknowledge that this Stipulated Protective Order does
not entitle them to file confidential information under seal; Local Civil Rule 79-5
sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.

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There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive motions,
good cause must be shown to support a filing under seal. See Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002), Makar-Welbon v. Sony
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective
orders require good cause showing), and a specific showing of good cause or
compelling reasons with proper evidentiary support and legal justification, must be
made with respect to Protected Material that a party seeks to file under seal. The
Parties’ mere designation of Disclosure or Discovery Material as CONFIDENTIAL
or ATTORNEYS’ EYES ONLY does not – without the submission of competent
evidence by declaration, establishing that the material sought to be filed under seal
qualifies as confidential, privileged, or otherwise protectable – constitute good
cause.

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Further, if a Party requests sealing related to a dispositive motion or trial,
then compelling reasons, not only good cause, for the sealing must be shown, and
the relief sought shall be narrowly tailored to serve the specific interest to be
protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677–79 (9th Cir.
2010). For each item or type of information, document, or thing sought to be filed
or introduced under seal in connection with a dispositive motion or trial, the Party
seeking protection must articulate compelling reasons, supported by specific facts
and legal justification, for the requested sealing order. Again, competent evidence
supporting the application to file documents under seal must be provided by
declaration.
Any document that is not confidential, privileged, or otherwise protectable in
its entirety will not be filed under seal if the confidential portions can be redacted.
If documents can be redacted, then a redacted version for public viewing, omitting
only the confidential, privileged, or otherwise protectable portions of the document,
shall be filed. Any application that seeks to file documents under seal in their
entirety should include an explanation of why redaction is not feasible.
2.

SCOPE

This Stipulation shall cover all information disclosed by either Party and
designated in good faith by either Party as “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the course of the
Litigation, including, but not limited to, discovery responses, documents produced
(including electronic documents) and testimony provided (collectively, “Protected
Material”) which discloses information which the designating Party verily believes
contains non-public, confidential information.
The protections conferred by this Stipulation and Order cover not only
Protected Material, but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Whenever any Party to whom
electronic data designated as “CONFIDENTIAL” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” is produced reduces such designated material to
hard copy form, such Party shall mark every applicable page of all such designated
material in the hard copy form with the words “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Testimony shall be treated
as described below. For purposes of this Stipulation, “Discovery Material”
includes, but is not limited to, documents, testimony or other materials which is
produced during the discovery phase of this litigation.
Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
3.

DURATION

Once a case proceeds to trial, information that was designated as
CONFIDENTIAL, ATTORNEYS’ EYES ONLY, maintained pursuant to this
protective order used, or introduced as an exhibit at trial becomes public and will be
presumptively available to all members of the public, including the press, unless
compelling reasons supported by specific factual findings to proceed otherwise are
made to the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180–81
(distinguishing “good cause” showing for sealing documents produced in discovery
from “compelling reasons” standard when merits-related documents are part of
court record). Accordingly, the terms of this protective order do not extend beyond
the commencement of the trial.
4.

DESIGNATING PROTECTED MATERIAL

Any producing Party or Non-Party may designate certain Discovery Material
as “CONFIDENTIAL” under the terms of this Stipulation if such party in good
faith believes that such Discovery Material contains non-public, confidential or

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proprietary information that requires the protections provided in this Stipulation
and Order. Any producing Party or Non-Party may designate as
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any Discovery Material that
the designating Party or Non-Party verily believes in good faith to contain nonpublic, confidential information which is currently commercially sensitive
information and that the producing Party or Non-Party or its counsel in good faith
reasonably believes is substantially likely to cause injury to the producing Party if
produced other than as permitted pursuant to this Stipulation.
A.

Exercise of Restraint and Care in Designating Material for

Protection.
Each Party or Non-Party that designates information or items for protection
under this Order must take care to limit any such designation to specific material
that qualifies under the appropriate standards. The Designating Party must
designate for protection only those parts of material, documents, items or oral or
written communications that qualify so that other portions of the material,
documents, items or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
Mass, indiscriminate or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to
impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.

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B.

Except as otherwise provided in this Order, or as otherwise stipulated or
ordered, Disclosure or Discovery Material that qualifies for protection under this
Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
i.

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page that contains confidential information shall be marked

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” Electronic data shall be embedded or otherwise

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marked with a ledger, electronic stamp, or electronic watermark

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of “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” by the producing Party, and the producing Party

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shall provide written notice that such data is to be considered

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” in accordance with this Stipulation. If only a

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portion of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected

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

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All Protected Material produced in the Litigation shall be
marked “CONFIDENTIAL” by the producing Party, and each

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Manner and Timing of Designations.

margins).
ii.

At any deposition in the Litigation, a Party may designate all or
a portion of the deposition testimony as “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by so
stating on the record. Such designation shall be indicated on
the title page of the deposition transcript and on each page of
the transcript where Protected Material appears. A Party may
also, within fifteen (15) days after copies of a deposition

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transcript are served, designate in a separate writing all or any

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portion of the testimony given in the deposition as

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” even if such testimony was not designated as

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such during the deposition.
iii.

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Court containing any information which has been designated as

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” the filing Party must either file such documents

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under seal following all applicable Court rules and procedures,

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or the filing Party must successfully challenge the documents’

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or materials’ status as “Protected Material” pursuant to section

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5 below prior to filing. If the Party seeking to file any

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documents designated as “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” is the

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receiving Party, the designating Party agrees to cooperate and

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supply any necessary basis to justify a filing under seal. The

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denial of any properly-filed motion to seal shall not prohibit the

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filing party’s use of the subject material in connection with the

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motion in support of which the Protected Material was filed.

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Further, nothing in this Protective Order shall preclude any

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party from filing a motion seeking further or different

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protection from the Court under Fed. R. Civ. P. 26(c), or from

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filing a motion with respect to the manner in which confidential

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If either Party intends to file documents and materials with the

information shall be treated at trial.
C.

Inadvertent Failure to Designate.

The inadvertent production of Protected Material not designated as

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” will
not be deemed a waiver of the producing Party’s right to so designate such material
or to seek such other confidential treatment as may be appropriate, if timely
corrected. The inadvertent failure to designate such material shall be corrected by
supplemental written notice to the receiving Party as soon as practicable, and the
receiving Party shall make all reasonable efforts to retrieve all copies, if any, of
such documents disclosed to persons not otherwise entitled to view
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
material and to prevent further use or disclosure of Protected Material contained
therein by such persons.
5.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
A.

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

a designation of “CONFIDENTIAL” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” at any time that is consistent with the
Court’s Scheduling Order.
B.

Meet and Confer. The Challenging Party shall initiate the

dispute resolution process under Local Rule 37.1 et seq. Counsel to
the Parties shall confer in good faith to resolve any disputes arising
under this Stipulation. Any material whose confidential status is
disputed shall continue to be treated as “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the
disputing Party agrees or the Court orders otherwise. No application
shall be made to the Court to resolve such disputes until after counsel
have consulted in good faith.
C.

The burden of persuasion in any such challenge proceeding

shall be on the Designating Party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary

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expenses and burdens on other parties) may expose the Challenging

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Party to sanctions. Unless the Designating Party has waived or

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withdrawn the confidentiality designation, all parties shall continue to

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afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the Court rules

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on the challenge.
6.

ACCESS TO AND USE OF PROTECTED MATERIAL

Protected Material shall be used solely for the purpose of prosecuting,
defending or attempting to settle this the Litigation (including any appeal), and
shall not be used or disclosed for any other purpose or in connection with any other
litigation, arbitration, or other legal proceeding, except as otherwise provided
herein.
A.

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shall not be disclosed in any manner to any person or entity

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except the following:
i.

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counsel of record (and, in the case of non-attorneys, only to the

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degree that is strictly necessary to perform work contemplated

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within the scope of the Litigation, and under the direct

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counsel of record for the Parties hereto, including all lawyers,
paralegals, and other employees of the firms of the Parties’

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Any Discovery Material designated as “CONFIDENTIAL”

supervision of an attorney);
ii.

any expert or consultant who is not an officer, director,
employee, or shareholder of a Party, who is retained (or
considered for retention) in connection with the Litigation by
any attorney described in subparagraph (i), and who has signed
the “Acknowledgment and Agreement to Be Bound,” in the
form attached hereto as Exhibit A;

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iii.

the Parties;

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the authors and recipients of documents containing Protected

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Material;
v.

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exceptions herein) who need to be questioned about specific

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Protected Material in preparation for, or during, their deposition

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or the Litigation, and have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
vi.

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vii.

the Court and all Court personnel; and

viii.

court reporters (including stenographers and video technicians)
engaged by counsel of record to record, transcribe, or videotape

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testimony in this Litigation, and copy services, data entry, and

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computer support services engaged by counsel of record who

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have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A).
The Parties, through their counsel, agree to inform every person within
Paragraphs 6(A)(ii), (v), and (vi) (above), as well as non-attorneys pursuant to
Paragraph 6(A)(i) (above), to whom disclosure of any Protected Material will be
made of the restrictions on disclosure contained in this Stipulation.
B.

Any Discovery Material designated “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” shall not be disclosed in any

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any mediator or arbitrator appointed to conduct any alternative
dispute resolution in the above-captioned action;

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deposition or hearing/trial witnesses (not covered by any other

manner to any person or entity except the following:
i.

counsel of record for the Parties hereto, including all lawyers,
paralegals, and other employees of the firms of the Parties’
counsel of record (and, in the case of non-attorneys, only to the

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degree that is strictly necessary to perform work contemplated

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within the scope of the Litigation, and under the direct

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supervision of an attorney);

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ii.

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employee, or shareholder of a Party, who is retained (or

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considered for retention) in connection with the Litigation by

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any attorney described in subparagraph (i);

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iii.

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iv.

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Protected Material in preparation for, or during, their

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deposition or the Litigation;

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v.

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videotape testimony in this Litigation, and copy services, data

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entry, and computer support services engaged by counsel of

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court reporters (including stenographers and video technicians)
engaged by counsel of record to record, transcribe, or

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the Court and all Court personnel; and

vi.

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deposition or hearing/trial witnesses (not covered by any other
exceptions herein) who need to be questioned about specific

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the authors and recipients of documents containing Protected
Material;

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any expert or consultant who is not an officer, director,

record.
7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

In the event that a receiving Party is served with a subpoena by any person,
firm, corporation or other entity who is not a Party to this Stipulation, which seeks
to compel a production of material that has been designated by a producing Party
as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
the Party upon whom the subpoena is served shall give written notice of the
subpoena to the Party who has asserted the “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation within seven (7)
days of receipt of the subpoena and, in any event, before the production date set
forth in the subpoena. The Party who has initially designated the
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
material shall then have the responsibility to obtain a Court order to quash the
subpoena and/or obtain such other relief as will protect the “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” nature of the material.
Should such a motion to quash or motion for protective be filed before the
requested production date, the Party upon whom the subpoena is served shall not
deliver the documents until after such time as the Court (or other appropriate court
or tribunal) rules on the subject motion; should an order be obtained, the Party
upon whom the subpoena is served shall comply with the order. Should no motion
be filed before the scheduled production date, the Party upon whom the subpoena
is served may comply with the subpoena. The Designating Party shall bear the
burden and expense of seeking protection in that court of its Protected Material,
and nothing in these provisions should be construed as authorizing or encouraging
a Receiving Party in this action to disobey a lawful directive from another court.
8.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
A.

The terms of this Order are applicable to information produced
by a Non-Party in this Action and designated as
“CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a Non-Party from
seeking additional protections.

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B.

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request, to produce a Non-Party’s confidential information in its

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possession, and the Party is subject to an agreement with the

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

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information, then the Party shall:
i.

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a confidentiality agreement with a Non-Party;
ii.

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

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information requested; and
iii.

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promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this Action, the relevant discovery

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promptly notify in writing the Requesting Party and the NonParty that some or all of the information requested is subject to

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

make the information requested available for inspection by the
Non-Party, if requested.

C.

If the Non-Party fails to seek a protective order from this court
within 14 days of receiving the notice and accompanying
information, the Receiving Party may produce the Non-Party’s
confidential information responsive to the discovery request. If
the Non-Party timely seeks a protective order, the Receiving
Party shall not produce any information in its possession or
control that is subject to the confidentiality agreement with the
Non-Party before a determination by the court. Absent a court
order to the contrary, the Non-Party shall bear the burden and
expense of seeking protection in this court of its Protected
Material.

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9.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all unauthorized copies of the Protected Material, (c) inform the person
or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
10.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

The production of any documents, confidential or otherwise, in this
Litigation is without prejudice to any claim by the producing Party, or producing
non-party, that such documents are privileged or contain work product. If, after
Protected Material is produced, a claim of privilege or work product is
subsequently made, the receiving Party shall take reasonable steps to ensure that all
known copies of such documents are returned promptly to the producing Party, and
no waiver of privilege or immunity shall be deemed to have occurred. The
inadvertent disclosure of privileged documents shall not create or constitute a
waiver of any applicable privilege. Notwithstanding the foregoing, the receiving
Party reserves the right to contest the assertion of privilege or other protection with
respect to any document.
11.

MISCELLANEOUS
A.

This Stipulation shall not prejudice the right of any Party to
apply to the Court for relief from or modification of this
Stipulation or for further protective orders as the Court may
deem appropriate.

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B.

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disclosing its own Protected Material to a person or entity as it

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deems appropriate.

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C.

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by the Parties as if approved.

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12.

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appeals related thereto, the Parties shall cause all persons who have received
Protected Material to: (a) return such Protected Material and all copies thereof
(including summaries and excerpts) to the producing Party; or (b) destroy all such
Protected Material and certify in writing to the producing Party that such Protected
Material has been destroyed. The Parties and their counsel shall be entitled to
retain court papers, deposition and trial transcripts, and attorney work product
provided that, to the extent that such items contain Protected Material, the pertinent
portions of such court papers or attorney work product shall not be disclosed to any
person except by agreement of the disclosing Party or by operation of law.
13.

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FINAL DISPOSITION

Within sixty (60) days after the final resolution of the Litigation, and any

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The Parties agree that prior to approval by the Court, this
Stipulation shall be binding on the Parties and shall be treated

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Nothing in this Stipulation shall prevent any Party from

VIOLATION

Any violation of this Order may be punished by appropriate measures,
including, without limitation, contempt proceedings or monetary sanctions. The
Parties consent to injunctive relief to prevent or stop any breach or threatened

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//
//
//
//

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breach of this Stipulation. In any such action, this Stipulation may be admissible
into evidence.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED:

SHLANSKY LAW GROUP, LLP

February 23, 2017

/s/ Colin R. Hagan
Colin R. Hagan (SBN 298591)
Attorneys for Plaintiff MASS
PROBIOTICS, INC.

DATED:

GRANT, GENOVESE & BARATTA,
LLP

February 23, 2017

/s/ Aaron A. Kupchella
Aaron A. Kupchella (SBN 286336)
David C. Grant (SBN 053635)
Attorneys for Defendant ASEPTIC
TECHNOLOGY, LLC

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ATTESTATION REGARDING SIGNATURES
I, Colin R. Hagan, attest that all signatories listed, and on whose behalf the
filing is submitted, concur in the filing’s content and have authorized the filing.

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DATED: February 23, 2017
/s/ Colin R. Hagan
Colin R. Hagan

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: February 28, 2017

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___________________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, ___________________________ [print or type full name], of ______________

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[print or type full address], declare under penalty of perjury that I have read in its entirety

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and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Central District of California on

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__________________________________ [date] in the case of Mass Probiotics, Inc., a

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Delaware Corporation v. Aseptic Technology, LLC, a California Limited Liability

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Company, Case Number SA CV 16-1394-DOC (GJS). I agree to comply with and to be

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bound by all the terms of this Stipulated Protective Order and I understand and

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acknowledge that failure to so comply could expose me to sanctions and punishment in

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the nature of contempt. I solemnly promise that I will not disclose in any manner any

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

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entity except 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 Court for

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the Central District of California, Southern Division – Santa Ana, for the purpose of

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enforcing the terms of this Stipulated Protective Order, even if such enforcement

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proceedings occur after termination of this action.

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

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______________________________ [print or type full address and telephone number] as

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my California agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.

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Date: ________________________________
City and State where sworn and signed: _______________________________________
Printed Name: __________________________________

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Signature: _____________________________________