QDOS, Inc. v. James H Donell

Filing 23

STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation 22 . See document for details. (gk)

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Damian D. Capozzola (SBN 186412)
Timothy R. Laquer (SBN 306917)
555 W. Fifth Street, 31st Floor
Los Angeles, California 90013
Phone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Anthony C. Modarelli III (SBN 286520)
Turner & Modarelli, PC
5000 Birch St., Suite 3000
Newport Beach, CA 92660
Phone: [phone]
Facsimile: (866) 83305594
[e-mail]
Counsel for Plaintiff, QDOS, Inc., a Delaware Corporation

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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QDOS, INC., a Delaware Corporation, )
)
)
Plaintiff,
)
)
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vs.
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)
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JAMES H. DONELL, RECEIVER
)
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FOR J.T. WALLENBROCK &
)
ASSOCIATES and CITADEL
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CAPITAL MANAGEMENT GROUP, )
INC.,
)
)
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Defendants.
)
)

Case No.: 8:16-cv-01472-R-KES
Assigned To: Hon. Manuel Real
STIPULATED PROTECTIVE
ORDER

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13390.2:2774130.1

STIPULATED PROTECTIVE ORDER

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A. PURPOSES AND LIMITATIONS

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

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proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court

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to enter the following Stipulated Protective Order. The parties acknowledge that

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this Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles.
B. GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, trademarks, patents, customer

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lists, pricing lists and other valuable research, development, commercial,

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financial, technical and/or proprietary information for which special protection

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from public disclosure and from use for any purpose other than prosecution of this

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action is warranted. Such confidential and proprietary materials and information

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consist of, among other things, confidential business or financial information,

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information regarding confidential business practices, or other confidential

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research, development, or commercial information (including information

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implicating privacy rights of third parties), information otherwise generally

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unavailable to the public, or which may be privileged or otherwise protected from

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disclosure under state or federal statutes, court rules, case decisions, or common

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law. Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for

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and in the conduct of trial, to address their handling at the end of the litigation,

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and serve the ends of justice, a protective order for such information is justified in
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this matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good

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faith belief that it has been maintained in a confidential, non-public manner, and

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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

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UNDER SEAL

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The parties further acknowledge, as set forth in Section 12.3, below, that

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this Stipulated Protective Order does not entitle them to file confidential

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

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

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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

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proceedings and records in civil cases. In connection with non-dispositive

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motions, good cause must be shown to support a filing under seal. See Kamakana

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v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v.

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Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated

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protective orders require good cause showing), and a specific showing of good

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cause or compelling reasons with proper evidentiary support and legal

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justification, must be made with respect to Protected Material that a party seeks to

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file under seal. The parties’ mere designation of Disclosure or Discovery Material

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as CONFIDENTIAL does not—without the submission of competent evidence by

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declaration, establishing that the material sought to be filed under seal qualifies as

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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

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compelling reasons, not only good cause, for the sealing must be shown, and the

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relief sought shall be narrowly tailored to serve the specific interest to be

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protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir.
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2010). For each item or type of information, document, or thing sought to be filed

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or introduced under seal in connection with a dispositive motion or trial, the party

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seeking protection must articulate compelling reasons, supported by specific facts

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and legal justification, for the requested sealing order. Again, competent evidence

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supporting the application to file documents under seal must be provided by

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declaration.

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Any document that is not confidential, privileged, or otherwise protectable

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in its entirety will not be filed under seal if the confidential portions can be

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redacted. If documents can be redacted, then a redacted version for public

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viewing, omitting only the confidential, privileged, or otherwise protectable

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portions of the document, shall be filed. Any application that seeks to file

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documents under seal in their entirety should include an explanation of why

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redaction is not feasible.

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2.

DEFINITIONS

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2.1

Action: This pending federal lawsuit with Case No.: 8:16-cv-01472-

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R-KES
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

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of how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above in

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

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or 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,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that

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are produced or 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

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an 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. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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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

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party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a law

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firm that 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,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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2.12 Producing Party: A Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: Persons or entities that provide litigation

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

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

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medium) and their employees and subcontractors.

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2.14 Protected Material: Any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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2.15 Receiving Party: A Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

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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 trial

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SCOPE

judge. This Order does not govern the use of Protected Material at trial.
4.

DURATION
Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to

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the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

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(distinguishing “good cause” showing for sealing documents produced in

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discovery from “compelling reasons” standard when merits-related documents are

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part of court record). Accordingly, the terms of this protective order do not extend

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beyond the commencement of the trial.

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5.

DESIGNATING PROTECTED MATERIAL

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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

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items or oral or
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STIPULATED PROTECTIVE ORDER

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written communications that qualify so that other portions of the material,

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documents, items or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate or routinized designations are prohibited.

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

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an improper purpose (e.g., to unnecessarily encumber the case development

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

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expose the Designating Party to sanctions.

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

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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.

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Except as otherwise provided in this Order (see, e.g., second paragraph of

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section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly

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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

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page

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that contains protected material. If only a portion of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents available for

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inspection need not designate them for protection until after the inspecting

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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

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available for inspection shall be deemed “CONFIDENTIAL.” After the

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inspecting Party has identified the documents it wants copied and produced,

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the Producing Party must determine which documents, or portions thereof,

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

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specified documents, the Producing Party must affix the “CONFIDENTIAL

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legend” to each page that contains Protected Material. If only a portion of

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the material on a page qualifies for protection, the Producing Party also

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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 identifies

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the Disclosure or Discovery Material on the record, before the close of the

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deposition all protected testimony.

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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

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on the exterior of the container or containers in which the information is

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stored the legend “CONFIDENTIAL.” If only a portion or portions of the

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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

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If timely corrected, an inadvertent failure to designate qualified information

Inadvertent Failures to Designate.

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or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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STIPULATED PROTECTIVE ORDER

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges.

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Any Party or Non-Party may challenge a designation of confidentiality at

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any time that is consistent with the Court’s Scheduling Order.

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6.2

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The Challenging Party shall initiate the dispute resolution process under

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Local Rule 37.1 et seq.
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Meet and Confer.

The burden of persuasion in any such challenge proceeding shall be

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

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived or withdrawn the confidentiality designation, all parties shall

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continue to 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 on the

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challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles.

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A Receiving Party may use Protected Material that is disclosed or produced

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by another Party or by a Non-Party in connection with this Action only for

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prosecuting, defending or attempting to settle this Action. Such Protected

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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

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).
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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7.2

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

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“CONFIDENTIAL” only to:

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

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

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necessary to 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;

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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

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who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the

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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

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deposing party requests that the witness sign the form attached as Exhibit 1

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hereto; and (2) they will not be permitted to keep any confidential

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information unless they sign the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits
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to depositions that reveal Protected Material may be separately bound by

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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

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discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification

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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

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

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subpoena or order is subject to this Protective Order. Such notification

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shall include a copy of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be

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affected.

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

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

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this action as “CONFIDENTIAL” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating

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Party’s permission. The Designating Party shall bear the burden and expense of

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seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in

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this Action to disobey a lawful directive from another court.
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9.

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

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

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Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in

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

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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

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Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:

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

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

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confidentiality agreement 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

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a reasonably specific description of the information requested; and

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(3) make the information requested available for inspection by the

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Non-Party, if requested.

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

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14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a

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protective order, the Receiving Party shall not produce any information in

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its possession or control that is subject to the confidentiality agreement with

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the Non-Party before a determination by the court. Absent a court order to

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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.

UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL

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

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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

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the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

OTHERWISE PROTECTED MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR

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

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of

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disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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12.1 Right to Further Relief.

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STIPULATED PROTECTIVE ORDER

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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.

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By stipulating to the entry of this Protective Order, no Party waives any

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right it otherwise would have to object to disclosing or producing any information

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or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of

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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 Protected Material must comply

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with Local Civil Rule 79-5. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material

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

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court, then the Receiving Party may file the information in the public record

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unless otherwise instructed by the court.

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13.

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After the final disposition of this Action, as defined in paragraph 4, within

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60 days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material,

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except to the extent that James H. Donell, Receiver, is required either by court

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order or by virtue of his duties as a Receiver appointed by the United States

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District Court to retain any such Protected Material, he shall be entitled to refuse

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to comply with such a written request by notifying QDOS, Inc. in writing of such

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refusal within five court days. QDOS, Inc. shall file any objection to such refusal

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within ten court days of receiving notice of such refusal. 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
13390.2:2774130.1

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STIPULATED PROTECTIVE ORDER

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

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

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identifies (by category, where appropriate) all the Protected Material that was

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returned or destroyed and (2) affirms that the Receiving Party has not retained any

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

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capturing any of the Protected Material. Notwithstanding this provision, Counsel

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are entitled to retain an archival copy of all pleadings, motion papers, trial,

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deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 4 (DURATION).

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14.

VIOLATION

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Any violation of this Order may be punished by appropriate measures

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including, without limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: October 7, 2016

TURNER & MODARELLI, PC

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____________________________________

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By: Anthony C. Modarelli
Attorney for Plaintiff, QDOS, Inc.

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DATED: October 7, 2016

ERVIN COHEN & JESSUP LLP

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_____/s/ Byron Z. Moldo_________________

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By: Byron Z. Moldo
Attorneys for Defendant, James H. Donell,
Receiver

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STIPULATED PROTECTIVE ORDER

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As the filer of this document, I attest that all other signatories listed on

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whose behalf the filing is submitted, concur in the filing's content and have

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authorized the filing.

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DATED: October 7, 2016

TURNER & MODARELLI, PC

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_____________________________________

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By: Anthony C. Modarelli

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Plaintiff, QDOS, Inc.

Attorney for

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: October 11, 2016

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_____________________________________

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HON. MANUEL L. REAL

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United States District Court Judge

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13390.2:2774130.1

STIPULATED PROTECTIVE ORDER

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