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)

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Fredrick A. Rafeedie (State Bar No. 138422)
[e-mail]
JONES, BELL, ABBOTT,
FLEMING & FITZGERALD L.L.P.
601 South Figueroa Street, 27th Floor
Los Angeles, California 90017
Tel: [phone]
Fax: [phone]
Nancy A. Del Pizzo (pro hac vice)
[e-mail]
RIVKIN RADLER LLP
21 Main Street, Suite 158
Court Plaza South –West Wing
Hackensack, New Jersey 07601
Tel: [phone]
Fax: [phone]

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Michael C. Cannata (pro hac vice)
[e-mail]
RIVKIN RADLER LLP
926 RXR Plaza, West Tower
Uniondale, New York 11556-0926
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiff, AstaReal, Inc.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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Case No.: 8:16-cv-1664 AG (DFMx)

ASTAREAL, INC.,
Plaintiff,
v.

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ALGAE LIFE SCIENCES, INC.,
ALGAE HEALTH SCIENCES,
INC., BGG NORTH AMERICA,
INC. and JINKE GROUP USA,
INC.,

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Defendants.

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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

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1.

PURPOSE AND LIMITS OF THIS ORDER

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Discovery in this action is likely to involve confidential, proprietary, or

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private information requiring special protection from public disclosure and from use for

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any purpose other than this litigation. Thus, the Court enters this Protective Order. This

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

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and the protection it gives from public disclosure and use extends only to the specific

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material entitled to confidential treatment under the applicable legal principles.

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The parties shall comply with L.R. 79-5.2.2(b) for purposes of filing with

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the Court any and all material designated in accordance with the terms set forth below,

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including any part of any pleadings and/or depositions and all papers (including

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pleadings, affidavits and memoranda of law) relying on or purporting to reproduce or

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paraphrase information designated in accordance with the terms set forth below.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

Over-Designation Prohibited. Any party or non-party who designates

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information or items for protection under this Order as “CONFIDENTIAL,” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” must only designate

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specific material that qualifies under the appropriate standards. To the extent practicable,

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only those parts of documents, items, or oral or written communications that require

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protection shall be designated. Designations with a higher confidentiality level when a

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lower level would suffice are prohibited. Mass, indiscriminate, or routinized

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designations are prohibited. Unjustified designations expose the designator to sanctions,

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including the Court’s striking all confidentiality designations made by that designator.

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Designation under this Order is allowed only if the designation is necessary to protect

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material that, if disclosed to persons not authorized to view it, would cause competitive

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or other recognized harm. Material may not be designated if it has been made public, or

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if designation is otherwise unnecessary to protect a secrecy interest. If a designator learns

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that information or items that it designated for protection do not qualify for protection at

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all or do not qualify for the level of protection initially asserted, that designator must
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promptly notify all parties that it is withdrawing the mistaken designation.
2.2

Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL,” or

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that contains

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protected material. For testimony given in

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designator shall specify all protected testimony and the level of protection being

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asserted. It may make that designation during the deposition or proceeding, or may

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invoke, on the record or by written notice to all parties on or before the next business

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day, a right to have up to 21 days from the deposition or proceeding to make its

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deposition

or

other

proceeding,

the

designation.

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2.2.1 A party or non-party that makes original documents or materials

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

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party has identified which material it would like copied and produced. During the

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inspection and before the designation, all material shall be treated as HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting party has

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identified the documents it wants copied and produced, the producing party must

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designate the documents, or portions thereof, that qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or other

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proceeding to include designated material so that the other parties can ensure that only

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authorized individuals are present at those proceedings when such material is disclosed

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or used. The use of a document as an exhibit at a deposition shall not in any way affect

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its designation. Transcripts containing designated material shall have a legend on the

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title page noting the presence of designated material, and the title page shall be followed

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by a list of all pages (including line numbers as appropriate) that have been designated,

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and the level of protection being asserted. The designator shall inform the court reporter

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of these requirements. Any transcript that is prepared before the expiration of the 21-day

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period for designation shall be treated during that period as if it had been designated

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed.
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After the expiration of the 21-day period, the transcript shall be treated only as actually

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designated.
2.3

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Inadvertent Failures to Designate. An inadvertent failure to designate

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does not, standing alone, waive protection under this Order. Upon timely assertion or

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correction of a designation, all recipients must make reasonable efforts to ensure that the

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material is treated according to this Order.

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3.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-

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1 through L.R. 37-4.
4.

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only for

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this litigation. Designated material may be disclosed only to the categories of persons

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and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further Approval.

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Unless otherwise ordered by the Court or permitted in writing by the designator, a

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receiving party may disclose any material designated CONFIDENTIAL only to:

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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;

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4.2.3 Experts retained by the receiving party’s outside counsel of record to

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whom disclosure is reasonably necessary, and who have signed the Agreement to Be

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Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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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
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4.2.7 The author or recipient of a document containing the material, or a

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custodian or other person who otherwise possessed or knew the information.
4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY Material Without Further Approval. Unless permitted in writing by the

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designator,

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CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to:

a

receiving

party

may

disclose

material

designated

HIGHLY

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4.3.1 The receiving party’s outside counsel of record in this action and

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employees of outside counsel of record to whom it is reasonably necessary to disclose

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the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably necessary, and

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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

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

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4.3.5 Experts retained by the receiving party’s outside counsel of record to

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whom disclosure is reasonably necessary, and who have signed the Agreement to Be

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Bound (Exhibit A);

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel.

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Unless agreed to in writing by the designator:

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4.4.1 A party seeking to disclose to in-house counsel any material

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designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first make a

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written request to the designator providing the full name of the in-house counsel, the city

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and state of such counsel’s residence, and such counsel’s current and reasonably

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foreseeable future primary job duties and responsibilities in sufficient detail to determine

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present or potential involvement in any competitive decision-making.

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4.4.2 A party that makes a request and provides the information specified
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in paragraphs 4.4.1 may disclose the designated material to the identified in-house

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counsel unless, within seven days of delivering the request, the party receives a written

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objection from the designator providing detailed grounds for the objection.
4.4.3 All challenges to objections from the designator shall proceed under

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L.R. 37-1 through L.R. 37-4.

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5.

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IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

5.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties described

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in this section is to alert the interested parties to the existence of this Order and to give

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the designator an opportunity to protect its confidentiality interests in the court where

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the subpoena or order issued.

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5.2

Notification Requirement. If a party is served with a subpoena or a court

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order issued in other litigation that compels disclosure of any information or items

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designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY, that party must:
5.2.1 Promptly notify the designator in writing. Such notification shall

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include a copy of the subpoena or court order;

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5.2.2 Promptly notify in writing the party who caused the subpoena or

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order 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 Order. Such notification shall include a copy of this

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Order; and
5.2.3 Cooperate with all reasonable procedures sought by the designator

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whose material may be affected.
5.3

Wait For Resolution of Protective Order. If the designator timely seeks

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a protective order, the party served with the subpoena or court order shall not produce

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any information designated in this action as CONFIDENTIAL or HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the court
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where the subpoena or order issued, unless the party has obtained the designator’s

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permission. The designator shall bear the burden and expense of seeking protection of

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its confidential material in that court.

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6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has

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disclosed designated material to any person or in any circumstance not authorized under

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this Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the designated

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material, (3) inform the person or persons to whom unauthorized disclosures were made

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of all the terms of this Order, and (4) use reasonable efforts to have such person or

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persons execute the Agreement to Be Bound (Exhibit A).

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7.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review pursuant to

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Federal Rule of Evidence 502(d) and (e).

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8.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, each party shall

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return all designated material to the designator or destroy such material, including all

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

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capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60-day deadline that (1) identifies (by category,

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where appropriate) all the designated material that was returned or destroyed, and (2)

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affirms that the receiving party has not retained any copies, abstracts, compilations,

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summaries, or any other format reproducing or capturing any of the designated material.
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This provision shall not prevent counsel from retaining an archival copy of all pleadings,

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motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain designated material.

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Any such archival copies remain subject to this Order.

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IT IS SO ORDERED.

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DATED: February 9, 2017
HON. DOUGLAS F. McCORMICK
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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AGREEMENT TO BE BOUND

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

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address], declare under penalty of perjury that I have read in its entirety and understand

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the Protective Order that was issued by the United States District Court for the Central

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District of California on _____________ [date] in the case of ______________ [insert

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formal name of the case and the number and initials assigned to it by the court]. I

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agree to comply with and to be bound by all the terms of this Protective Order, and I

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understand and acknowledge that failure to so comply could expose me to sanctions and

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punishment for 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 Protective Order to any person or entity except

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in strict compliance with 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 for the purpose of enforcing this Order, even if such

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enforcement 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

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proceedings related to enforcement of this Order.

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Date: _______________________

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City and State where sworn and signed:

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Printed name:
[printed name]

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Signature:

[signature]
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