Barbara Castillo v. Fluidmaster Inc.

Filing 60

ORDER RE: STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Stipulation for Protective Order 58 . (see document for details). (dro)

1
2

UNITED STATES DISTRICT COURT

3

CENTRAL DISTRICT OF CALIFORNIA – SANTA ANA

4
5
6

Case No. 8:16-cv-01743-AG (KES)

8

ORDER RE: STIPULATED
PROTECTIVE ORDER

BARBARA CASTILLO, individually
and on behalf of all others similarly
7 situated,
Plaintiffs,

9
10
11
12

Judge: Hon. Andrew J. Guilford
Courtroom: 10D, Santa Ana

v.
FLUIDMASTER, INC.,
Defendant.

Magistrate Judge: Hon. Karen E. Scott
Courtroom: 6D, Santa Ana
Complaint Filed: September 19, 2016

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-1Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

1.

PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or

2
3

private information requiring special protection from public disclosure and from

4

use for any purpose other than this litigation. Thus, the Court enters this

5

Protective Order. This Order does not confer blanket protections on all

6

disclosures or responses to discovery, and the protection it gives from public

7

disclosure and use extends only to the specific material entitled to confidential

8

treatment under the applicable legal principles. This Order does not

9

automatically authorize the filing under seal of material designated under this

10

Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file

11

anything under seal. This Order does not govern the use at trial of material

12

designated under this Order.

13

2.

14

DESIGNATING PROTECTED MATERIAL
2.1

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

15

designates information or items for protection under this Order as

16

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEY EYES

17

ONLY" (a "designator") must only designate specific material that qualifies under

18

the appropriate standards. To the extent practicable, only those parts of

19

documents, items, or oral or written communications that require protection shall

20

be designated. Designations with a higher confidentiality level when a lower level

21

would suffice are prohibited. Mass, indiscriminate, or routinized designations are

22

prohibited. Unjustified designations expose the designator to sanctions, including

23

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

24

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

25

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

26

competitive or other recognized harm. Material may not be designated if it has

27

been made public, or if designation is otherwise unnecessary to protect a secrecy

28

interest. If a designator learns that information or items that it designated for
-2Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

protection do not qualify for protection at all or do not qualify for the level of

2

protection initially asserted, that designator must promptly notify all parties that it

3

is withdrawing the mistaken designation.

4

2.2

Manner and Timing of Designations. Designation under this Order

5

requires the designator to affix the applicable legend ("CONFIDENTIAL" or

6

"HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY") to each page that

7

contains protected material. For testimony given in deposition or other

8

proceeding, the designator shall specify all protected testimony and the level of

9

protection being asserted. It may make that designation during the deposition or

10

proceeding, or may invoke, on the record or by written notice to all parties on or

11

before the next business day, a right to have up to 21 days from the deposition or

12

proceeding to make its designation.

13

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

14

materials available for inspection need not designate them for protection

15

until after the inspecting party has identified which material it would like

16

copied and produced. During the inspection and before the designation, all

17

material shall be treated as HIGHLY CONFIDENTIAL - ATTORNEY

18

EYES ONLY. After the inspecting party has identified the documents it

19

wants copied and produced, the producing party must designate the

20

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

21

2.2.2 Parties shall give advance notice if they expect a deposition

22

or other proceeding to include designated material so that the other

23

parties can ensure that only authorized individuals are present at those

24

proceedings when such material is disclosed or used. The use of a

25

document as an exhibit at a deposition shall not in any way affect its

26

designation. Transcripts containing designated material shall have a

27

legend on the title page noting the presence of designated material, and

28

the title page shall be followed by a list of all pages (including line
-3Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

numbers as appropriate) that have been designated, and the level of

2

protection being asserted. The designator shall inform the court reporter

3

of these requirements. Any transcript that is prepared before the

4

expiration of the 21-day period for designation shall be treated during

5

that period as if it had been designated HIGHLY CONFIDENTIAL -

6

ATTORNEY EYES ONLY unless otherwise agreed. After the expiration

7

of the 21-day period, the transcript shall be treated only as actually

8

designated.

9

2.3

Inadvertent Failures to Designate. An inadvertent failure to

10

designate does not, standing alone, waive protection under this Order. Upon

11

timely assertion or correction of a designation, all recipients must make

12

reasonable efforts to ensure that the material is treated according to this Order.

13

3.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

14
15

through L.R. 37-4

16

4.

17

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material

18 only for this litigation.

Designated material may be disclosed only to the

19 categories of persons and under the conditions described in this Order.
20

4.2

Disclosure of CONFIDENTIAL Material Without Further

21 Approval. Unless otherwise ordered by the Court or permitted in writing by
22 the designator, a receiving party may disclose any material designated
23 CONFIDENTIAL only to:
24

4.2.1 The receiving party's outside counsel of record in this action

25

and employees of outside counsel of record to whom disclosure is

26

reasonably necessary;

27

4.2.2 The officers, directors, and employees of the receiving party

28

to whom disclosure is reasonably necessary, and who have signed the
-4Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

Agreement to Be Bound (Exhibit A);

1

4.2.3 Experts and other vendors retained by the receiving party's

2
3

outside counsel of record to whom disclosure is reasonably necessary,

4

and who have signed the Agreement to Be Bound (Exhibit A);

5

4.2.4 The Court and its personnel;

6

4.2.5 Outside court reporters and their staff, professional jury or

7

trial consultants, and professional vendors to whom disclosure is

8

reasonably necessary, and who have signed the Agreement to Be Bound

9

(Exhibit A);

10

4.2.6 During their depositions, witnesses in the action to whom

11

disclosure is reasonably necessary and who have signed the Agreement

12

to Be Bound (Exhibit A); and
4.2.7 The author or recipient of a document containing the

13
14

material, or a custodian or other person who otherwise possessed or

15

knew the information.

16

4.3

Disclosure of HIGHLY CONFIDENTIAL - ATTORNEY

17

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

18

designator, a receiving party may disclose material designated HIGHLY

19

CONFIDENTIAL - ATTORNEY EYES ONLY without further approval only

20

to:

21

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

22

and employees of outside counsel of record to whom it is reasonably

23

necessary to disclose the information;

24

4.3.2 Experts and other vendors retained by the receiving party's

25

outside counsel of record to whom disclosure is reasonably necessary, and

26

who have signed the Agreement to Be Bound (Exhibit A);

27

4.3.3 The Court and its personnel;

28

4.3.4 Outside court reporters and their staff, professional jury or
-5Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

trial consultants, and professional vendors to whom disclosure is

2

reasonably necessary, and who have signed the Agreement to Be Bound

3

(Exhibit A); and
4.3.5 The author or recipient of a document containing the

4
5

material, or a custodian or other person who otherwise possessed or

6

knew the information.

7

4.4

Procedures for Approving or Objecting to Disclosure of

8 HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY Material to
9 In-House Counsel or Experts. Unless agreed to in writing by the
10 designator:

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

11
12

designated HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY

13

must first make a written request to the designator providing the full name

14

of the in-house counsel, the city and state of such counsel's residence, and

15

such counsel's current and reasonably foreseeable future primary job

16

duties and responsibilities in sufficient detail to determine present or

17

potential involvement in any competitive decision-making.
4.4.2 A party that makes a request and provides the information

18
19

specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated

20

material to the identified in- house counsel, within seven days of

21

delivering the request, the party receives a written objection from the

22

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

23

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

24
25

5.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

26

PRODUCED IN OTHER LITIGATION

27

5.1

28

Subpoenas and Court Orders. This Order in no way excuses

non- compliance with a lawful subpoena or court order. The purpose of the
-6Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

duties described in this section is to alert the interested parties to the existence

2

of this Order and to give the designator an opportunity to protect its

3

confidentiality interests in the court where the subpoena or order issued.
5.2

4

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

5

a court order issued in other litigation that compels disclosure of any

6

information or items designated in this action as CONFIDENTIAL or HIGHLY

7

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

8

notification shall include a copy of the subpoena or court order;

9
10

5.2.2 Promptly notify in writing the party who caused the

11

subpoena or order to issue in the other litigation that some or all of the

12

material covered by the subpoena or order is subject to this Order. Such

13

notification shall include a copy of this Order; and
5.2.3 Cooperate with all reasonable procedures sought by the

14
15

designator whose material may be affected.

16

5.3

Wait For Resolution of Protective Order. If the designator

17

timely seeks a protective order, the party served with the subpoena or court

18

order shall not produce any information designated in this action as

19

CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY

20

before a determination by the court where the subpoena or order issued, unless

21

the party has obtained the designator's permission. The designator shall bear the

22

burden and expense of seeking protection of its confidential material in that

23

court.

24 6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

25

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

26

disclosed designated material to any person or in any circumstance not

27

authorized under this Order, it must immediately (1) notify in writing the

28

designator of the unauthorized disclosures, (2) use its best efforts to retrieve all
-7Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

unauthorized copies of the designated material, (3) inform the person or persons

2

to whom unauthorized disclosures were made of all the terms of this Order, and

3

(4) use reasonable efforts to have such person or persons execute the Agreement

4

to Be Bound (Exhibit A).

5

7.

INADVERTENT PRODUCTION OF PRIVILEGED OR

6

OTHERWISE PROTECTED MATERIAL

7

When a producing party gives notice that certain inadvertently produced

8

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

9

the receiving parties are those set forth in Federal Rule of Civil Procedure

10

26(b)(5)(B). This provision is not intended to modify whatever procedure may

11

be established in an e-discovery order that provides for production without prior

12

privilege review pursuant to Federal Rule of Evidence 502(d) and (e).

13 8.

FILING UNDER SEAL

14

Without written permission from the designator or a Court order, a party

15

may not file in the public record in this action any designated material. A party

16

seeking to file under seal any designated material must comply with L.R. 79-5.1.

17

Filings may be made under seal only pursuant to a court order authorizing the

18

sealing of the specific material at issue. The fact that a document has been

19

designated under this Order is insufficient to justify filing under seal. Instead,

20

parties must explain the basis for confidentiality of each document sought to be

21

filed under seal. Because a party other than the designator will often be seeking

22

to file designated material, cooperation between the parties in preparing, and in

23

reducing the number and extent of, requests for under seal filing is essential. If a

24

receivng party's request to file designated material under seal pursuant to L.R. 79-

25

5.1 is denied by the Court, then the receiving party may file the material in the public

26

record unless (1) the designator seeks reconsideration within four days of the

27

denial, or (2) as otherwise instructed by the Court.

28

-8Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

9.

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

2
3

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

4

including all copies, abstracts, compilations, summaries, and any other format

5

reproducing or capturing any designated material. The receiving party must

6

submit a written certification to the designator by the 60- day deadline that (1)

7

identifies (by category, where appropriate) all the designated material that was

8

returned or destroyed, and (2) affirms that the receiving party has not retained

9

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

10

or capturing any of the designated material. This provision shall not prevent

11

counsel from retaining an archival copy of all pleadings, motion papers, trial,

12

deposition, and hearing transcripts, legal memoranda, correspondence,

13

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

14

///
15
16

///

17

///
18
19

///

20

///
21
22

///

23

///
24
25

///

26

///
27
28

///
-9Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

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

2

material. Any such archival copies remain subject to this Order.

3

Respectfully submitted,

4
5 Dated: November 14, 2016
6
7
8

/s/ Simon B. Paris
Simon Bahne Paris
Patrick Howard
Charles Kocher
SALTZ, MONGELUZZI, BARRETT
& BENDESKY, P.C.

9

Counsel for Plaintiffs and the
Proposed Classes

10
11
12
13
14 Dated: November 14, 2016
15
16
17
18

/s/ Carolyn S. Toto
Mark D. Litvack
Kimberly Buffington
Carolyn S. Toto
James Chang
PILLSBURY WINTHROP SHAW
PITTMAN LLP

19

Counsel for Defendant
FLUIDMASTER, INC.

20
21
22

ORDER

23
24

IT IS SO ORDERED.

25
26

DATED: November 15, 2016
Karen E. Scott, U.S. Magistrate Judge

27
28

-10Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1

1

EXHIBIT A

2

AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of

3
4

__________________________ [print or type full address], declare under penalty

5

of perjury that I have read in its entirety and understand the Protective Order that

6

was issued by the United States District Court for the Central District of California

7

on ___________________ [date] in the case of Castillo v. Fluidmaster, Inc., Case

8 No. 8:16-cv-01743-AG(KES). I agree to comply with and to be bound by all the
9 terms of this Protective Order, and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment for contempt. I solemnly
11 promise that I will not disclose in any manner any information or item that is
12 subject to this Protective Order to any person or entity except in strict compliance
13 with this Order.
14

I further agree to submit to the jurisdiction of the United States District Court

15 for the Central District of California for the purpose of enforcing this Order, even if
16 such enforcement proceedings occur after termination of this action.

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

17

18 ________________________ [print or type full address and telephone number] as
19 my California agent for service of process in connection with this action or any
20 proceedings related to enforcement of this Order.
21

Date:

22
23

City and State where sworn and signed:

24

Printed name:

25

[printed name]

26
27 Signature:
28

[signature]
-11Case No. 8:16-cv-01743-AG(KES)

STIPULATED PROTECTIVE ORDER
4847-8112-6460.v1