AstaReal, Inc. v. Algae Life Sciences, Inc. et al

Filing 39

PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

Download PDF
1 2 3 4 5 6 7 8 9 10 Fredrick A. Rafeedie (State Bar No. 138422) JONES, BELL, ABBOTT, FLEMING & FITZGERALD L.L.P. 601 South Figueroa Street, 27th Floor Los Angeles, California 90017 Tel: 213-485-1555 Fax: 213-689-1004 Nancy A. Del Pizzo (pro hac vice) RIVKIN RADLER LLP 21 Main Street, Suite 158 Court Plaza South –West Wing Hackensack, New Jersey 07601 Tel: 201-287-2460 Fax: 201-489-0495 13 Michael C. Cannata (pro hac vice) RIVKIN RADLER LLP 926 RXR Plaza, West Tower Uniondale, New York 11556-0926 Tel: 516-357-3233 Fax: 516-357-3333 14 Attorneys for Plaintiff, AstaReal, Inc. 11 12 15 16 IN THE UNITED STATES DISTRICT COURT 17 FOR THE CENTRAL DISTRICT OF CALIFORNIA 18 19 20 21 22 Case No.: 8:16-cv-1664 AG (DFMx) ASTAREAL, INC., Plaintiff, v. 24 ALGAE LIFE SCIENCES, INC., ALGAE HEALTH SCIENCES, INC., BGG NORTH AMERICA, INC. and JINKE GROUP USA, INC., 25 Defendants. 23 PROTECTIVE ORDER Scheduling Conference: February 6, 2017 at 9:00 a.m. Courtroom: 10D Before the Honorable Andrew J. Guilford First Amended Complaint Filed: December 23, 2016 26 27 28 -1- 1 1. PURPOSE AND LIMITS OF THIS ORDER 2 Discovery in this action is likely to involve confidential, proprietary, or 3 private information requiring special protection from public disclosure and from use for 4 any purpose other than this litigation. Thus, the Court enters this Protective Order. This 5 Order does not confer blanket protections on all disclosures or responses to discovery, 6 and the protection it gives from public disclosure and use extends only to the specific 7 material entitled to confidential treatment under the applicable legal principles. 8 The parties shall comply with L.R. 79-5.2.2(b) for purposes of filing with 9 the Court any and all material designated in accordance with the terms set forth below, 10 including any part of any pleadings and/or depositions and all papers (including 11 pleadings, affidavits and memoranda of law) relying on or purporting to reproduce or 12 paraphrase information designated in accordance with the terms set forth below. 13 2. 14 DESIGNATING PROTECTED MATERIAL 2.1 Over-Designation Prohibited. Any party or non-party who designates 15 information or items for protection under this Order as “CONFIDENTIAL,” or 16 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” must only designate 17 specific material that qualifies under the appropriate standards. To the extent practicable, 18 only those parts of documents, items, or oral or written communications that require 19 protection shall be designated. Designations with a higher confidentiality level when a 20 lower level would suffice are prohibited. Mass, indiscriminate, or routinized 21 designations are prohibited. Unjustified designations expose the designator to sanctions, 22 including the Court’s striking all confidentiality designations made by that designator. 23 Designation under this Order is allowed only if the designation is necessary to protect 24 material that, if disclosed to persons not authorized to view it, would cause competitive 25 or other recognized harm. Material may not be designated if it has been made public, or 26 if designation is otherwise unnecessary to protect a secrecy interest. If a designator learns 27 that information or items that it designated for protection do not qualify for protection at 28 all or do not qualify for the level of protection initially asserted, that designator must -2- 1 2 promptly notify all parties that it is withdrawing the mistaken designation. 2.2 Manner and Timing of Designations. Designation under this Order 3 requires the designator to affix the applicable legend (“CONFIDENTIAL,” or 4 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that contains 5 protected material. For testimony given in 6 designator shall specify all protected testimony and the level of protection being 7 asserted. It may make that designation during the deposition or proceeding, or may 8 invoke, on the record or by written notice to all parties on or before the next business 9 day, a right to have up to 21 days from the deposition or proceeding to make its 10 deposition or other proceeding, the designation. 11 2.2.1 A party or non-party that makes original documents or materials 12 available for inspection need not designate them for protection until after the inspecting 13 party has identified which material it would like copied and produced. During the 14 inspection and before the designation, all material shall be treated as HIGHLY 15 CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting party has 16 identified the documents it wants copied and produced, the producing party must 17 designate the documents, or portions thereof, that qualify for protection under this Order. 18 2.2.2 Parties shall give advance notice if they expect a deposition or other 19 proceeding to include designated material so that the other parties can ensure that only 20 authorized individuals are present at those proceedings when such material is disclosed 21 or used. The use of a document as an exhibit at a deposition shall not in any way affect 22 its designation. Transcripts containing designated material shall have a legend on the 23 title page noting the presence of designated material, and the title page shall be followed 24 by a list of all pages (including line numbers as appropriate) that have been designated, 25 and the level of protection being asserted. The designator shall inform the court reporter 26 of these requirements. Any transcript that is prepared before the expiration of the 21-day 27 period for designation shall be treated during that period as if it had been designated 28 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed. -3- 1 After the expiration of the 21-day period, the transcript shall be treated only as actually 2 designated. 2.3 3 Inadvertent Failures to Designate. An inadvertent failure to designate 4 does not, standing alone, waive protection under this Order. Upon timely assertion or 5 correction of a designation, all recipients must make reasonable efforts to ensure that the 6 material is treated according to this Order. 7 3. CHALLENGING CONFIDENTIALITY DESIGNATIONS All challenges to confidentiality designations shall proceed under L.R. 37- 8 9 10 11 1 through L.R. 37-4. 4. ACCESS TO DESIGNATED MATERIAL 4.1 Basic Principles. A receiving party may use designated material only for 12 this litigation. Designated material may be disclosed only to the categories of persons 13 and under the conditions described in this Order. 14 4.2 Disclosure of CONFIDENTIAL Material Without Further Approval. 15 Unless otherwise ordered by the Court or permitted in writing by the designator, a 16 receiving party may disclose any material designated CONFIDENTIAL only to: 17 18 19 20 4.2.1 The receiving party’s outside counsel of record in this action and employees of outside counsel of record to whom disclosure is reasonably necessary; 4.2.2 The officers, directors, and employees of the receiving party to whom disclosure is reasonably necessary; 21 4.2.3 Experts retained by the receiving party’s outside counsel of record to 22 whom disclosure is reasonably necessary, and who have signed the Agreement to Be 23 Bound (Exhibit A); 24 4.2.4 The Court and its personnel; 25 4.2.5 Outside court reporters and their staff, professional jury or trial 26 27 28 consultants, and professional vendors to whom disclosure is reasonably necessary; 4.2.6 During their depositions, witnesses in the action to whom disclosure is reasonably necessary; and -4- 4.2.7 The author or recipient of a document containing the material, or a 1 2 3 custodian or other person who otherwise possessed or knew the information. 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES 4 ONLY Material Without Further Approval. Unless permitted in writing by the 5 designator, 6 CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to: a receiving party may disclose material designated HIGHLY 7 4.3.1 The receiving party’s outside counsel of record in this action and 8 employees of outside counsel of record to whom it is reasonably necessary to disclose 9 the information; 10 4.3.2 The Court and its personnel; 11 4.3.3 Outside court reporters and their staff, professional jury or trial 12 consultants, and professional vendors to whom disclosure is reasonably necessary, and 13 who have signed the Agreement to Be Bound (Exhibit A); and 4.3.4 The author or recipient of a document containing the material, or a 14 15 custodian or other person who otherwise possessed or knew the information. 16 4.3.5 Experts retained by the receiving party’s outside counsel of record to 17 whom disclosure is reasonably necessary, and who have signed the Agreement to Be 18 Bound (Exhibit A); 19 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 20 CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel. 21 Unless agreed to in writing by the designator: 22 4.4.1 A party seeking to disclose to in-house counsel any material 23 designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first make a 24 written request to the designator providing the full name of the in-house counsel, the city 25 and state of such counsel’s residence, and such counsel’s current and reasonably 26 foreseeable future primary job duties and responsibilities in sufficient detail to determine 27 present or potential involvement in any competitive decision-making. 28 4.4.2 A party that makes a request and provides the information specified -5- 1 in paragraphs 4.4.1 may disclose the designated material to the identified in-house 2 counsel unless, within seven days of delivering the request, the party receives a written 3 objection from the designator providing detailed grounds for the objection. 4.4.3 All challenges to objections from the designator shall proceed under 4 5 L.R. 37-1 through L.R. 37-4. 6 5. 7 IN OTHER LITIGATION 8 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 5.1 Subpoenas and Court Orders. This Order in no way excuses non- 9 compliance with a lawful subpoena or court order. The purpose of the duties described 10 in this section is to alert the interested parties to the existence of this Order and to give 11 the designator an opportunity to protect its confidentiality interests in the court where 12 the subpoena or order issued. 13 5.2 Notification Requirement. If a party is served with a subpoena or a court 14 order issued in other litigation that compels disclosure of any information or items 15 designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL – 16 ATTORNEY EYES ONLY, that party must: 5.2.1 Promptly notify the designator in writing. Such notification shall 17 18 include a copy of the subpoena or court order; 19 5.2.2 Promptly notify in writing the party who caused the subpoena or 20 order to issue in the other litigation that some or all of the material covered by the 21 subpoena or order is subject to this Order. Such notification shall include a copy of this 22 Order; and 5.2.3 Cooperate with all reasonable procedures sought by the designator 23 24 25 whose material may be affected. 5.3 Wait For Resolution of Protective Order. If the designator timely seeks 26 a protective order, the party served with the subpoena or court order shall not produce 27 any information designated in this action as CONFIDENTIAL or HIGHLY 28 CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the court -6- 1 where the subpoena or order issued, unless the party has obtained the designator’s 2 permission. The designator shall bear the burden and expense of seeking protection of 3 its confidential material in that court. 4 6. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 5 If a receiving party learns that, by inadvertence or otherwise, it has 6 disclosed designated material to any person or in any circumstance not authorized under 7 this Order, it must immediately (1) notify in writing the designator of the unauthorized 8 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated 9 material, (3) inform the person or persons to whom unauthorized disclosures were made 10 of all the terms of this Order, and (4) use reasonable efforts to have such person or 11 persons execute the Agreement to Be Bound (Exhibit A). 12 7. 13 PROTECTED MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 14 When a producing party gives notice that certain inadvertently produced 15 material is subject to a claim of privilege or other protection, the obligations of the 16 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 17 provision is not intended to modify whatever procedure may be established in an e- 18 discovery order that provides for production without prior privilege review pursuant to 19 Federal Rule of Evidence 502(d) and (e). 20 8. FINAL DISPOSITION 21 Within 60 days after the final disposition of this action, each party shall 22 return all designated material to the designator or destroy such material, including all 23 copies, abstracts, compilations, summaries, and any other format reproducing or 24 capturing any designated material. The receiving party must submit a written 25 certification to the designator by the 60-day deadline that (1) identifies (by category, 26 where appropriate) all the designated material that was returned or destroyed, and (2) 27 affirms that the receiving party has not retained any copies, abstracts, compilations, 28 summaries, or any other format reproducing or capturing any of the designated material. -7- 1 This provision shall not prevent counsel from retaining an archival copy of all pleadings, 2 motion papers, trial, deposition, and hearing transcripts, legal memoranda, 3 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 4 consultant and expert work product, even if such materials contain designated material. 5 Any such archival copies remain subject to this Order. 6 IT IS SO ORDERED. 7 8 9 10 11 DATED: February 9, 2017 HON. DOUGLAS F. McCORMICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- 1 EXHIBIT A 2 AGREEMENT TO BE BOUND 3 I, ______________ [print or type full name], of _____________ [print or type full 4 address], declare under penalty of perjury that I have read in its entirety and understand 5 the Protective Order that was issued by the United States District Court for the Central 6 District of California on _____________ [date] in the case of ______________ [insert 7 formal name of the case and the number and initials assigned to it by the court]. I 8 agree to comply with and to be bound by all the terms of this Protective Order, and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment for contempt. I solemnly promise that I will not disclose in any manner any 11 information or item that is subject to this Protective Order to any person or entity except 12 in strict compliance with this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Central District of California for the purpose of enforcing this Order, even if such 15 enforcement proceedings occur after termination of this action. 16 I hereby appoint _________________ [print or type full name] of 17 ____________________________ [print or type full address and telephone number] as 18 my California agent for service of process in connection with this action or any 19 proceedings related to enforcement of this Order. 20 21 Date: _______________________ 22 23 City and State where sworn and signed: 24 25 Printed name: [printed name] 26 27 28 Signature: [signature] -9-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?