Michael Dobeck v. Cobra Engineering Inc et al

Filing 49

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 46 (see attached) (jm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL DOBECK, an individual, Case No. 8:16-cv-01570-JVS-FFM 12 13 Plaintiff, 14 v. 15 16 17 [PROPOSED] STIPULATED PROTECTIVE ORDER COBRA ENGINEERING, INC., a California corporation, and Does 1 through 10 18 Defendant. 19 HON. FREDERICK F. MUMM USDC MAGISTRATE JUDGE 20 21 22 1. A. PURPOSES AND LIMITATIONS 23 24 Discovery in this action is likely to involve production of confidential, 25 proprietary, or private information for which special protection from public 26 disclosure and from use for any purpose other than prosecuting this litigation may 27 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 28 enter the following Stipulated Protective Order. The parties acknowledge that this 1 Order does not confer blanket protections on all disclosures or responses to 2 discovery and that the protection it affords from public disclosure and use extends 3 only to the limited information or items that are entitled to confidential treatment 4 under the applicable legal principles. The parties further acknowledge, as set forth in 5 Section 12.3, below, that this Stipulated Protective Order does not entitle them to 6 file confidential information under seal; Civil Local Rule 79-5 sets forth the 7 procedures that must be followed and the standards that will be applied when a party 8 seeks permission from the court to file material under seal. 9 10 B. GOOD CAUSE STATEMENT 11 12 This action is a patent infringement dispute that is likely to involve 13 confidential information including but not limited to trade secrets, customer 14 information, pricing lists and other valuable research, development, commercial, 15 financial, technical and/or proprietary information for which special protection from 16 public disclosure and from use for any purpose other than prosecution of this action 17 is warranted. Such confidential and proprietary materials and information may 18 consist of, among other things, confidential business or financial information, 19 software and computer codes, information regarding confidential business practices, 20 or other confidential research, development, or commercial information (including 21 information implicating privacy rights of third parties), information otherwise 22 generally unavailable to the public, or which may be privileged or otherwise 23 protected from disclosure under state or federal statutes, court rules, case decisions, 24 or common law. Accordingly, to expedite the flow of information, to facilitate the 25 prompt resolution of disputes over confidentiality of discovery materials, to 26 adequately protect information the parties are entitled to keep confidential, to ensure 27 that the parties are permitted reasonable necessary uses of such material in 28 preparation for and in the conduct of trial, to address their handling at the end of the 2 1 litigation, and serve the ends of justice, a protective order for such information is 2 justified in this matter. It is the intent of the parties that information will not be 3 designated as confidential for tactical reasons and that nothing be so designated 4 without a good faith belief that it has been maintained in a confidential, non-public 5 manner, and there is good cause why it should not be part of the public record of this 6 case. 7 8 2. DEFINITIONS 9 2.1 Action: This pending federal law suit, 8:16-cv-01570-JVS-FFM . 10 2.2 Challenging Party: a Party or Non-Party that challenges the 11 12 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 13 how it is generated, stored or maintained) or tangible things that qualify for 14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 15 the Good Cause Statement. 16 2.4 Counsel: Outside Counsel of Record (as well as their support staff). 17 2.5 Designating Party: a Party or Non-Party that designates information or 18 items that it produces in disclosures or in responses to discovery as 19 “CONFIDENTIAL.” 20 2.6 Disclosure or Discovery Material: all items or information, regardless 21 of the medium or manner in which it is generated, stored, or maintained (including, 22 among other things, testimony, transcripts, and tangible things), that are produced or 23 generated in disclosures or responses to discovery in this matter. 24 2.7 Expert: a person with specialized knowledge or experience in a matter 25 pertinent to the litigation who has been retained by a Party or its counsel to serve as 26 an expert witness or as a consultant in this Action. 27 28 2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 3 1 2.10 Outside Counsel of Record: attorneys who are not employees of a 2 party to this Action but are retained to represent or advise a party to this Action and 3 have appeared in this Action on behalf of that party or are affiliated with a law firm 4 which has appeared on behalf of that party, and includes support staff. 5 2.11 Party: any party to this Action, including all of its officers, directors, 6 employees, consultants, retained experts, and Outside Counsel of Record (and their 7 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 8 9 Discovery Material in this Action. 2.13 Professional Vendors: 10 persons or entities that provide litigation 11 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 12 demonstrations, and organizing, storing, or retrieving data in any form or medium) 13 and their employees and subcontractors. 14 2.14 Protected Material: 15 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “Highly Confidential-Attorneys Eyes Only.” 2.15 Receiving Party: 16 17 Material from a Producing Party. 18 3. a Party that receives Disclosure or Discovery SCOPE 19 The protections conferred by this Stipulation and Order cover not only 20 Protected Material (as defined above), but also (1) any information copied or 21 extracted from Protected Material; (2) all copies, excerpts, summaries, or 22 compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by the orders of the 24 25 trial judge. This Order does not govern the use of Protected Material at trial. 26 4. DURATION 27 Even after final disposition of this litigation, the confidentiality obligations 28 imposed by this Order shall remain in effect until a Designating Party agrees 4 1 otherwise in writing or a court order otherwise directs. Final disposition shall be 2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with 3 or without prejudice; and (2) final judgment herein after the completion and 4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, 5 including the time limits for filing any motions or applications for extension of time 6 pursuant to applicable law. 7 8 9 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 10 Each Party or Non-Party that designates information or items for protection under 11 this Order must take care to limit any such designation to specific material that 12 qualifies under the appropriate standards. The Designating Party must designate for 13 protection only those parts of material, documents, items, or oral or written 14 communications that qualify so that other portions of the material, documents, 15 items, or communications for which protection is not warranted are not swept 16 unjustifiably within the ambit of this Order. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations 18 that are shown to be clearly unjustified or that have been made for an improper 19 purpose (e.g., to unnecessarily encumber the case development process or to impose 20 unnecessary expenses and burdens on other parties) may expose the Designating 21 Party to sanctions. 22 If it comes to a Designating Party’s attention that information or items that it 23 designated for protection do not qualify for protection, that Designating Party must 24 promptly notify all other Parties that it is withdrawing the inapplicable designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in 26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 28 under this Order must be clearly so designated before the material is disclosed or 5 1 2 3 produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 4 documents, but excluding transcripts of depositions or other pretrial or trial 5 proceedings), that the Producing Party affix at a minimum, the legend 6 “CONFIDENTIAL” or “Highly Confidential-Attorneys Eyes Only” (hereinafter the 7 “CONFIDENTIAL legend”), to each page that contains protected material. 8 A Party or Non-Party that makes original documents available for inspection 9 need not designate them for protection until after the inspecting Party has indicated 10 which documents it would like copied and produced. During the inspection and 11 before the designation, all of the material made available for inspection shall be 12 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 13 documents it wants copied and produced, the Producing Party must determine which 14 documents, or portions thereof, qualify for protection under this Order. Then, before 15 producing the specified documents, the Producing Party must affix the 16 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 17 portion or portions of the material on a page qualifies for protection, the Producing 18 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 19 markings in the margins). 20 (b) for testimony given in depositions that the Designating Party identify 21 the Disclosure or Discovery Material on the record, before the close of the 22 deposition all protected testimony. 23 (c) for information produced in some form other than documentary and 24 for any other tangible items, that the Producing Party affix in a prominent place on 25 the exterior of the container or containers in which the information is stored the 26 CONFIDENTIAL Legend. If only a portion or portions of the information warrants 27 protection, the Producing Party, to the extent practicable, shall identify the protected 28 portion(s). 6 5.3 1 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive 3 the Designating Party’s right to secure protection under this Order for such material. 4 Upon timely correction of a designation, the Receiving Party must make reasonable 5 efforts to assure that the material is treated in accordance with the provisions of this 6 Order. 7 8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 9 Timing of Challenges. Any Party or Non-Party may challenge a 10 designation of confidentiality at any time that is consistent with the Court’s 11 Scheduling Order. 6.2 12 13 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 14 The burden of persuasion in any such challenge proceeding shall be on 15 the Designating Party. Frivolous challenges, and those made for an improper 16 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 17 parties) may expose the Challenging Party to sanctions. Unless the Designating 18 Party has waived or withdrawn the confidentiality designation, all parties shall 19 continue to afford the material in question the level of protection to which it is 20 entitled under the Producing Party’s designation until the Court rules on the 21 challenge. 22 23 24 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 25 disclosed or produced by another Party or by a Non-Party in connection with this 26 Action only for prosecuting, defending, or attempting to settle this Action. Such 27 Protected Material may be disclosed only to the categories of persons and under the 28 conditions described in this Order. When the Action has been terminated, a 7 1 Receiving Party must comply with the provisions of section 13 below (FINAL 2 DISPOSITION). 3 Protected Material must be stored and maintained by a Receiving Party at a 4 location and in a secure manner that ensures that access is limited to the persons 5 authorized under this Order. 6 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 7 otherwise ordered by the court or permitted in writing by the Designating Party, a 8 Receiving 9 “CONFIDENTIAL” only to: Party may disclose any information or item designated 10 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 11 well as employees of said Outside Counsel of Record to whom it is reasonably 12 necessary to disclose the information for this Action; 13 14 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this Action; 15 (c) Experts (as defined in this Order) of the Receiving Party to whom 16 disclosure is reasonably necessary for this Action and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (d) the court and its personnel; 19 (e) court reporters and their staff; 20 (f) professional jury or trial consultants, mock jurors, and Professional 21 Vendors to whom disclosure is reasonably necessary for this Action and who have 22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 23 24 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 25 (h) during their depositions, witnesses, and attorneys for witnesses, in the 26 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 27 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 28 not be permitted to keep any confidential information unless they sign the 8 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 2 agreed by the Designating Party or ordered by the court. Pages of transcribed 3 deposition testimony or exhibits to depositions that reveal Protected Material may 4 be separately bound by the court reporter and may not be disclosed to anyone except 5 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 6 7 mutually agreed upon by any of the parties engaged in settlement discussions. 8 9 7.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without Further Approval. 10 Unless permitted in writing by the designator, a receiving party may 11 disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or 12 HIGHLY CONFIDENTIAL – SOURCE CODE without further approval only to: 13 7.3.1 The receiving party’s outside counsel of record in this action and 14 employees of outside counsel of record to whom it is reasonably necessary to disclose 15 the information; 16 7.3.2 The Court and its personnel; 17 7.3.3 Outside court reporters and their staff, professional jury or trial 18 consultants, and professional vendors to whom disclosure is reasonably necessary, and 19 who have signed the Agreement to Be Bound (Exhibit A); and 20 7.3.4 The author or recipient of a document containing the material, or a 21 custodian or other person who otherwise possessed or knew the information. 22 8. 23 IN OTHER LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 24 If a Party is served with a subpoena or a court order issued in other litigation 25 that compels disclosure of any information or items designated in this Action as 26 “CONFIDENTIAL,” that Party must: 27 28 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 9 1 (b) promptly notify in writing the party who caused the subpoena or order 2 to issue in the other litigation that some or all of the material covered by the 3 subpoena or order is subject to this Protective Order. Such notification shall include 4 a copy of this Stipulated Protective Order; and (c) 5 6 cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 7 If the Designating Party timely seeks a protective order, the Party served with 8 the subpoena or court order shall not produce any information designated in this 9 action as “CONFIDENTIAL” before a determination by the court from which the 10 subpoena or order issued, unless the Party has obtained the Designating Party’s 11 permission. The Designating Party shall bear the burden and expense of seeking 12 protection in that court of its confidential material and nothing in these provisions 13 should be construed as authorizing or encouraging a Receiving Party in this Action 14 to disobey a lawful directive from another court. 15 16 9. A NON-PARTY’S PROTECTED 17 MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 18 (a) The terms of this Order are applicable to information produced by a 19 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 20 produced by Non-Parties in connection with this litigation is protected by the 21 remedies and relief provided by this Order. Nothing in these provisions should be 22 construed as prohibiting a Non-Party from seeking additional protections. 23 (b) In the event that a Party is required, by a valid discovery request, to 24 produce a Non-Party’s confidential information in its possession, and the Party is 25 subject to an agreement with the Non-Party not to produce the Non-Party’s 26 confidential information, then the Party shall: 27 (1) promptly notify in writing the Requesting Party and the Non-Party 28 that some or all of the information requested is subject to a confidentiality 10 1 agreement with a Non-Party; 2 (2) promptly provide the Non-Party with a copy of the Stipulated 3 Protective Order in this Action, the relevant discovery request(s), and a reasonably 4 specific description of the information requested; and (3) make the information requested available for inspection by the 5 6 Non-Party, if requested. 7 (c) If the Non-Party fails to seek a protective order from this court within 8 14 days of receiving the notice and accompanying information, the Receiving Party 9 may produce the Non-Party’s confidential information responsive to the discovery 10 request and designate the information with the appropriate Confidential Legend. If 11 the Non-Party timely seeks a protective order, the Receiving Party shall not produce 12 any information in its possession or control that is subject to the confidentiality 13 agreement with the Non-Party before a determination by the court. Absent a court 14 order to the contrary, the Non-Party shall bear the burden and expense of seeking 15 protection in this court of its Protected Material. 16 17 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 Protected Material to any person or in any circumstance not authorized under this 20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 21 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 22 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 23 persons to whom unauthorized disclosures were made of all the terms of this Order, 24 and (d) request such person or persons to execute the “Acknowledgment and 25 Agreement to Be Bound” that is attached hereto as Exhibit A. 26 27 28 11 1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 2 PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 7 may be established in an e-discovery order that provides for production without 8 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar 9 as the parties reach an agreement on the effect of disclosure of a communication or 10 information covered by the attorney-client privilege or work product protection, the 11 parties may incorporate their agreement in the stipulated protective order submitted 12 to the court. 13 14 15 16 12. 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. 17 12.2 Right to Assert Other Objections. By stipulating to the entry of this 18 Protective Order no Party waives any right it otherwise would have to object to 19 disclosing or producing any information or item on any ground not addressed in this 20 Stipulated Protective Order. Similarly, no Party waives any right to object on any 21 ground to use in evidence of any of the material covered by this Protective Order. 22 12.3 Filing Protected Material. A Party that seeks to file under seal any 23 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 24 only be filed under seal pursuant to a court order authorizing the sealing of the 25 specific Protected Material at issue. If a Party's request to file Protected Material 26 under seal is denied by the court, then the Receiving Party may file the information 27 in the public record unless otherwise instructed by the court. 28 12 1 13. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 60 3 days of a written request by the Designating Party, each Receiving Party must return 4 all Protected Material to the Producing Party or destroy such material. As used in 5 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving 8 Party must submit a written certification to the Producing Party (and, if not the same 9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 10 (by category, where appropriate) all the Protected Material that was returned or 11 destroyed and (2)affirms that the Receiving Party has not retained any copies, 12 abstracts, compilations, summaries or any other format reproducing or capturing any 13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 16 reports, attorney work product, and consultant and expert work product, even if such 17 materials contain Protected Material. Any such archival copies that contain or 18 constitute Protected Material remain subject to this Protective Order as set forth in 19 Section 4 (DURATION). 20 21 14. Any violation of this Order may be punished by any and all appropriate 22 measures including, without limitation, contempt proceedings and/or monetary 23 sanctions. 24 25 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 26 27 28 DATED: May 1, 2017 /S/ Frederick F. Mumm HON. FREDERICK F. MUMM United States District/Magistrate Judge 13 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on [date] in the case of ___________ [insert formal name of the case and the 9 number and initials assigned to it by the court]. I agree to comply with and to be 10 bound by all the terms of this Stipulated Protective Order and I understand and 11 acknowledge that failure to so comply could expose me to sanctions and punishment 12 in the nature of contempt. I solemnly promise that I will not disclose in any manner 13 any information or item that is subject to this Stipulated Protective Order to any 14 person or entity except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [print 19 or type full name] of _______________________________________ [print or type 20 full address and telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 14 type full name], of

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