Discount Micro Sales v. Hard Disk Direct et al

Filing 28

JOINT STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott: IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. See document for details. (dv)

1
2
3
4
5
6
7
8

JOSEPH A. MANDOUR, III (SBN 188896)
BEN T. LILA (SBN 246808)
MANDOUR & ASSOCIATES, APC
8605 Santa Monica Blvd., Suite 1500
Los Angeles, CA 90069
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for plaintiff,
DISCOUNT MICRO SALES

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12

DISCOUNT MICRO SALES, a
California corporation,

13
14

Plaintiff,

15
16

v.

17

HARD DISK DIRECT, an unknown
entity; and MOIZ KHAN, an
individual;

18
19
20

Defendants.

21
22
23
24

\\

25

\\

26

\\

27

\\

28

)
) Case No. 8:16-cv-2140-DOC-KES
)
----------------) [PROPOSED] JOINT
STIPULATED PROTECTIVE
) ORDER
)
) Judge: Honorable David O. Carter
)
) [Discovery Document: Referred to
) Magistrate Judge Karen E. Scott]
)
) Complaint filed: December 5, 2016
)
)
)
)

\\
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-1-

STIPULATION REGARDING CONFIDENTIAL INFORMATION

1
2

GOOD CAUSE STATEMENT
This action is likely to involve trade secrets, consumer information,

3
4

proprietary software, customer and pricing lists and other valuable research,

5

development, commercial, financial, technical and/or proprietary information for

6

which special protection from public disclosure and from use for any purpose other

7

than prosecution of this action is warranted. Such confidential and proprietary

8

materials and information consist of, among other things, confidential business or

9

financial information, information regarding confidential business practices, or

10

other confidential research, development, or commercial information (including

11

information implicating privacy rights of third parties), information otherwise

12

generally unavailable to the public, or which may be privileged or otherwise

13

protected from disclosure under state or federal statutes, court rules, case decisions,

14

or common law. Accordingly, to expedite the flow of information, to facilitate the

15

prompt resolution of disputes over confidentiality of discovery materials, to

16

adequately protect information the parties are entitled to keep confidential, to

17

ensure that the parties are permitted reasonable necessary uses of such material in

18

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

19

the litigation, and serve the ends of justice, a protective order for such information

20

is justified in this matter. It is the intent of the parties that information will not be

21

designated as confidential for tactical reasons and that nothing be so designated

22

without a good faith belief that it has been maintained in a confidential,

23

non-public manner, and there is good cause why it should not be part of the public

24

record of this case.

25

\\

26

\\

27

\\

28

\\
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-2-

1

1.

PURPOSES AND LIMITATIONS

2

Disclosure and discovery activity in this action are likely to involve

3

production of confidential, proprietary, or private information for which special

4

protection from public disclosure and from use for any purpose other than

5

prosecuting this litigation may be warranted. Accordingly, the parties hereby

6

stipulate to and petition the court to enter the following Stipulated Protective

7

Order. The parties acknowledge that this Order does not confer blanket protections

8

on all disclosures or responses to discovery and that the protection it affords from

9

public disclosure and use extends only to the limited information or items that are

10

entitled to confidential treatment under the applicable legal principles. The parties

11

further acknowledge, as set forth in Section 12.3, below, that this Stipulated

12

Protective Order does not entitle them to file confidential information under seal;

13

Civil Local Rule 79-5 sets forth the procedures that must be followed and the

14

standards that will be applied when a party seeks permission from the court to file

15

material under seal.

16

2.

17
18
19

DEFINITIONS
2.1

Challenging Party: a Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

20

how it is generated, stored, or maintained) or tangible things that contain

21

proprietary business or personal information of a party (or of a third person whose

22

information the party is under a duty to maintain in confidence).

23

“CONFIDENTIAL” information or items generally include materials used by the

24

Designating Party in or pertaining to its business, which matter is not generally

25

known and which the Designating Party would not normally reveal to third parties

26

or would cause third parties to maintain in confidence. Disclosure or Discovery

27

Material containing Confidential Information may be designated

28

“CONFIDENTIAL.”
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-3-

1
2
3

2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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

4

or items that it produces in disclosures or in responses to discovery as

5

“CONFIDENTIAL AND/OR ATTORNEYS’ EYES ONLY.”

6

2.5

Disclosure or Discovery Material: all items or information, such as

7

oral, written, documentary, testimony, tangible, intangible, electronic, or digitized,

8

now or hereafter, that are produced or generated in disclosures or responses to

9

discovery in this matter, including material or information produced by non-parties

10
11

if they so request.
2.6

Expert: a person with specialized knowledge or experience in a

12

matter pertinent to the litigation who: (1) has been retained by a Party or its

13

counsel to serve as an expert witness or as a consultant in this action; (2) is not a

14

past or current employee of a Party or of a Party’s competitor, and (3) at the time

15

of retention, is not anticipated to become an employee of a Party or of a Party’s

16

competitor.

17

2.7

House Counsel: attorneys who are employees of a party to this action.

18

House Counsel does not include Outside Counsel of Record or any other outside

19

counsel.

20
21
22

2.8

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a

23

party to this action but are retained to represent or advise a party to this action and

24

have appeared in this action on behalf of that party or are affiliated with a law firm

25

which has appeared on behalf of that party (presently, Mandour & Associates,

26

APC for plaintiff and Law Office of Brenda A. Prackup for defendant Silicon

27

Networks, LLC, d/b/a Hard Disk Direct ).

28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-4-

1

2.10 Party: any party to this action, including all of its officers, directors,

2

employees, consultants, retained experts, and Outside Counsel of Record (and their

3

support staffs).

4
5

2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

6

2.12 Professional Vendors: persons or entities that provide litigation

7

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

8

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

9

and their employees and subcontractors.

10

2.13 Insurance Carrier Representative: the Receiving Party’s insurance

11

carrier or carrier(s) and their counsel to the extent reasonably related to any actual

12

or potential coverage in connection with this litigation.

13

2.14 Protected Material: any Disclosure or Discovery Material that is

14

designated as “CONFIDENTIAL AND/OR ATTORNEYS’ EYES ONLY.”

15

2.15 Receiving Party: a Party that receives Disclosure or Discovery

16
17

Material from a Producing Party.
2.16 “ATTORNEYS’ EYES ONLY” Information or Items: information

18

(regardless of how generated, stored, or maintained) or tangible things that a

19

Designating Party believes in good faith to be extremely sensitive

20

CONFIDENTIAL information, disclosure of which to another Party or Non-Party

21

would create substantial risk of material economic harm to the Producing Party

22

that could not be avoided by less restrictive means. The parties agree that the

23

ATTORNEYS’ EYES ONLY designation includes the following categories of

24

information, to the extent the criteria of the first sentence of this Section 2.16 are

25

met: (i) confidential business, marketing, or strategic plans, including business,

26

marketing, and technical information regarding future products; and (ii) trade

27

secrets (including as defined in Cal. Civ. Code § 3426.1) and highly confidential

28

and commercially sensitive technical information.
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-5-

1

3.

SCOPE

2

The protections conferred by this Stipulation and Order cover not only

3

Protected Material (as defined above), but also (1) any information copied or

4

extracted from Protected Material; (2) all copies, excerpts, summaries, or

5

compilations of Protected Material; and (3) any testimony, conversations, or

6

presentations by Parties or their Counsel that might reveal Protected Material.

7

However, the protections conferred by this Stipulation and Order do not cover the

8

following information: (a) any information that is in the public domain at the time

9

of disclosure to a Receiving Party or becomes part of the public domain after its

10

disclosure to a Receiving Party as a result of publication not involving a violation

11

of this Order, including becoming part of the public record through trial or

12

otherwise; and (b) any information known to the Receiving Party prior to the

13

disclosure or obtained by the Receiving Party after the disclosure from a source

14

who obtained the information lawfully and under no obligation of confidentiality to

15

the Designating Party. Any use of Protected Material at trial shall be governed by a

16

separate agreement or order.

17

4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

18
19

imposed by this Order shall remain in effect until a Designating Party agrees

20

otherwise in writing or a court order otherwise directs. Final disposition shall be

21

deemed to be the later of (1) dismissal of all claims and defenses in this action,

22

with or without prejudice; and (2) final judgment herein after the completion and

23

exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

24

including the time limits for filing any motions or applications for extension of

25

time pursuant to applicable law.

26

5.

DESIGNATING PROTECTED MATERIAL

27

5.1

Exercise of Restraint and Care in Designating Material for Protection.

28

Each Party or Non-Party that designates information or items for protection
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-6-

1

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

2

that qualifies under the appropriate standards. The Designating Party must

3

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

4

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

5

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

6

swept unjustifiably within the ambit of this Order.

7

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

8

designated for protection do not qualify for protection, that Designating Party must

9

promptly notify all other Parties that it is withdrawing the mistaken designation.

10

5.2

Manner and Timing of Designations. Except as otherwise provided in

11

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

12

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

13

under this Order must be clearly so designated before the material is disclosed or

14

produced.

15

Designation in conformity with this Order requires:

16

(a) for information in documentary form (e.g., paper or electronic

17

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

18

proceedings), that the Producing Party affix the legend “CONFIDENTIAL

19

AND/OR ATTORNEYS’ EYES ONLY” to each page that contains protected

20

material. If only a portion or portions of the material on a page qualifies for

21

protection, the Producing Party also must clearly identify the protected portion(s)

22

(e.g., by making appropriate markings in the margins).

23

A Party or Non-Party that makes original documents or materials available

24

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

25

Party has indicated which material it would like copied and produced. During the

26

inspection and before the designation, all of the material made available for

27

inspection shall be deemed “CONFIDENTIAL AND/OR ATTORNEYS’ EYES

28

ONLY.” After the inspecting Party has identified the documents it wants copied
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-7-

1

and produced, the Producing Party must determine which documents, or portions

2

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

3

specified documents, the Producing Party must affix the “CONFIDENTIAL

4

AND/OR ATTORNEYS’ EYES ONLY” legend to each page that contains

5

Protected Material. If only a portion or portions of the material on a page qualifies

6

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

7

portion(s) (e.g., by making appropriate markings in the margins).

8

(b) for testimony given in deposition or in other pretrial or trial proceedings,

9

that the Designating Party identify on the record, before the close of the deposition,

10
11

hearing, or other proceeding, all protected testimony.
Deposition testimony may be treated as “CONFIDENTIAL AND/OR

12

ATTORNEYS’ EYES ONLY” during the deposition, as the Designating Party

13

may direct, and the transcript of the designated testimony shall be transcribed on

14

separate pages and so marked by the reporter. A Designating Party also may so

15

designate portions of the deposition after the transcription is produced and shall

16

have twenty (20) days after receipt of such deposition transcript to advise the

17

Receiving Party, in writing, of the portions of the deposition transcript that are to

18

be designated as “CONFIDENTIAL AND/OR ATTORNEYS’ EYES ONLY”

19

after which period the right to make such designations shall be waived.

20

The Designating Party may exclude any person from a deposition, other than

21

those to whom Confidential Information may be disclosed pursuant to this Order.

22

Failure of such person(s) to comply with the request hereunder shall constitute

23

substantial justification for counsel to advise the witness to refrain from answering

24

the question seeking to reveal Confidential Information.

25

(c) for information produced in some form other than documentary and for

26

any other tangible items, that the Producing Party affix in a prominent place on the

27

exterior of the container or containers in which the information or item is stored

28

the legend “CONFIDENTIAL AND/OR ATTORNEYS’ EYES ONLY.” If only a
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-8-

1

portion or portions of the information or item warrant protection, the Producing

2

Party, to the extent practicable, shall identify the protected portion(s).
5.3

3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

4

failure to designate qualified information or items does not, standing alone, waive

5

the Designating Party’s right to secure protection under this Order for such

6

material. Upon timely correction of a designation, the Receiving Party must make

7

reasonable efforts to assure that the material is treated in accordance with the

8

provisions of this Order.

9

6.

10

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of

11

confidentiality at any time. Unless a prompt challenge to a Designating Party’s

12

confidentiality designation is necessary to avoid foreseeable, substantial

13

unfairness, unnecessary economic burdens, or a significant disruption or delay of

14

the litigation, a Party does not waive its right to challenge a confidentiality

15

designation by electing not to mount a challenge promptly after the original

16

designation is disclosed.

17

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

18

resolution process by providing written notice of each designation it is challenging

19

and describing the basis for each challenge. To avoid ambiguity as to whether a

20

challenge has been made, the written notice must recite that the challenge to

21

confidentiality is being made in accordance with this specific paragraph of the

22

Protective Order. The parties shall attempt to resolve each challenge in good faith

23

and must begin the process by conferring directly (in voice to voice dialogue; other

24

forms of communication are not sufficient) within 14 days of the date of service of

25

notice. In conferring, the Challenging Party must explain the basis for its belief that

26

the confidentiality designation was not proper and must give the Designating Party

27

an opportunity to review the designated material, to reconsider the circumstances,

28

and, if no change in designation is offered, to explain the basis for the chosen
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
-9-

1

designation. A Challenging Party may proceed to the next stage of the challenge

2

process only if it has engaged in this meet and confer process first or establishes

3

that the Designating Party is unwilling to participate in the meet and confer process

4

in a timely manner.
6.3

5

Judicial Intervention. If the Parties cannot resolve a challenge without

6

court intervention, the Receiving Party may seek a Court Order setting aside the

7

Designating Party’s Designation pursuant to the discovery dispute procedures set

8

forth in Central District of California Civil Local Rules 37-1 through 37-4.
The burden of persuasion in any such challenge proceeding shall be on the

9
10

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

11

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

12

expose the Challenging Party to sanctions. Unless the Designating Party has

13

waived the confidentiality designation by failing to file a motion to retain

14

confidentiality as described above, all parties shall continue to afford the material

15

in question the level of protection to which it is entitled under the Producing

16

Party’s designation until the court rules on the challenge.

17

7.

18

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

19

disclosed or produced by another Party or by a Non-Party in connection with this

20

case only for prosecuting, defending, or attempting to settle this litigation. Such

21

Protected Material may be disclosed only to the categories of persons and under

22

the conditions described in this Order. When the litigation has been terminated, a

23

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

24

DISPOSITION).

25

Protected Material must be stored and maintained by a Receiving Party at a

26

location and in a secure manner that ensures that access is limited to the persons

27

authorized under this Order.

28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 10 -

1

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

2

otherwise ordered by the court or permitted in writing by the Designating Party, a

3

Receiving Party may disclose any information or item designated

4

“CONFIDENTIAL” only to:

5

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

6

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

7

necessary to disclose the information for this litigation;

8

(b) the officers, directors, and employees (including House Counsel) of the

9

Receiving Party to whom disclosure is reasonably necessary for this litigation, and

10

who have signed the Acknowledgment and Agreement to Be Bound by Protective

11

Order (Exhibit A);

12

(c) Experts (as defined in this Order) of the Receiving Party to whom

13

disclosure is reasonably necessary for this litigation and who have signed the

14

Acknowledgment and Agreement to Be Bound by Protective Order (Exhibit A),

15

provided that the Receiving Party seeking to disclose information to said Experts

16

comply with the following procedures prior to disclosure:

17

(i) Unless otherwise ordered by the court or agreed to in writing by

18

the Designating Party, a Party that seeks to disclose to an Expert any

19

information or item that has been designated CONFIDENTIAL first

20

must make a written request to the Designating Party that: (1) sets

21

forth the full name of the Expert and the city and state of his or her

22

primary residence; (2) attaches a copy of the Expert’s current resume;

23

(3) identifies the Expert’s current employer(s); (4) identifies each

24

person or entity from whom the Expert has received compensation or

25

funding for work in his or her areas of expertise or to whom the expert

26

has provided professional services, including in connection with a

27

litigation, at any time during the preceding five years; and (5)

28

identifies (by name and number of the case, filing date, and location
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 11 -

1

of court) any litigation in connection with which the Expert has

2

offered expert testimony, including through a declaration, report, or

3

testimony at a deposition or trial, during the preceding five years.

4

(ii) A Party that makes a request and provides the information

5

specified in the preceding respective paragraphs may disclose the

6

subject Protected Material to the identified Expert unless, within

7

seven (7) business days of delivering the request, the Party receives a

8

written objection from the Designating Party. Any such objection

9

must set forth in detail the grounds on which it is based.

10

(iii) A Party that receives a timely written objection must meet and

11

confer with the Designating Party (through direct voice to voice

12

dialogue) to try to resolve the matter by agreement within seven (7)

13

business days of the written objection. If no agreement is reached, the

14

Party seeking to make the disclosure to the Expert may file a motion

15

in accordance with the Local Rules seeking permission from the court

16

to do so. Any such motion must describe the circumstances with

17

specificity, set forth in detail the reasons why the disclosure to the

18

Expert is reasonably necessary, assess the risk of harm that the

19

disclosure would entail, and suggest any additional means that could

20

be used to reduce that risk. In addition, any such motion must be

21

accompanied by a competent declaration describing the parties’

22

efforts to resolve the matter by agreement (i.e., the extent and the

23

content of the meet and confer discussions) and setting forth the

24

reasons advanced by the Designating Party for its refusal to approve

25

the disclosure. In any such proceeding, the Party opposing disclosure

26

to the Expert shall bear the burden of proving that the risk of harm

27

that the disclosure would entail (under the safeguards proposed)

28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 12 -

1

outweighs the Receiving Party’s need to disclose the Protected

2

Material to its Expert.

3

(d) the court and its personnel;

4

(e) Court reporters and their staff and Professional Vendors (as defined in

5

this Order) to whom disclosure is reasonably necessary for this litigation;
(f) during their depositions, witnesses in the action to whom disclosure is

6
7

reasonably necessary and who have signed the Acknowledgment and Agreement to

8

Be Bound by Protective Order (Exhibit A), unless otherwise agreed by the

9

Designating Party or ordered by the court. Pages of transcribed deposition

10

testimony or exhibits to depositions that reveal Protected Material must be

11

separately bound by the court reporter and may not be disclosed to anyone except

12

as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

13
14

custodian or other person who otherwise possessed or knew the information.
(h) A party’s Insurance Carrier Representative (as defined in this Order) to

15
16

whom disclosure is reasonably necessary for this litigation and who have signed

17

the Acknowledgment and Agreement to Be Bound by Protective Order (Exhibit

18

A).

19

7.3

Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items.

20

Unless otherwise ordered by the court or permitted in writing by the Designating

21

Party, a Receiving Party may disclose any information or item designated

22

“ATTORNEYS’ EYES ONLY” only to the court and its personnel, and to the

23

categories of persons identified in subparagraphs 2.6, 2.9, 2.12, and 2.13, subject to

24

the execution of the Acknowledgment and Agreement to Be Bound by Protective

25

Order (Exhibit A) as required in Section 7.2 for the specified categories of persons,

26

and compliance with the pre-disclosure procedures outlined for Experts in

27

subparagraphs 7.2(c)(i)-(iii) above.

28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 13 -

7.4

1

Copies of the “Acknowledgment and Agreement to be Bound” forms

2

required under subparagraphs 7.2 and 7.3 shall be promptly served on the

3

Producing Party and/or Designating Party.

4

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

5

PRODUCED IN OTHER LITIGATION

6

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

7

that compels disclosure of any information or items designated in this action as

8

“CONFIDENTIAL” and/or “ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

9
10

include a copy of the subpoena or court order;

11

(b) promptly notify in writing the party who caused the subpoena or order to

12

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

13

or order is subject to this Protective Order. Such notification shall include a copy

14

of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

15
16

by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

17
18

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

19

this action as “CONFIDENTIAL” and/or “ATTORNEYS’ EYES ONLY” before a

20

determination by the court from which the subpoena or order issued, unless the

21

Party has obtained the Designating Party’s permission. The Designating Party shall

22

bear the burden and expense of seeking protection in that court of its confidential

23

material – and nothing in these provisions should be construed as authorizing or

24

encouraging a party in this action to disobey a lawful directive from another court

25

or a lawful subpoena issued in another action.

26

\\\

27

\\\

28

\\\
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 14 -

1

9.

2

PRODUCED IN THIS LITIGATION

3

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)

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

4

Non-Party in this action and designated as “CONFIDENTIAL” and/or

5

“ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in

6

connection with this litigation is protected by the remedies and relief provided by

7

this Order. Nothing in these provisions should be construed as prohibiting a Non-

8

Party from seeking additional protections.

9

(b)

In the event that a Party is required, by a valid discovery request, to

10

produce a Non-Party’s confidential information in its possession, and the Party is

11

subject to an agreement with the Non-Party not to produce the Non-Party’s

12

confidential information, then the Party shall:
(1)

13

promptly notify in writing the Requesting Party and the

14

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

15

confidentiality agreement with a Non-Party;
(2)

16

promptly provide the Non-Party with a copy of the

17

Stipulated Protective Order in this litigation, the relevant discovery request(s), and

18

a reasonably specific description of the information requested; and
(3)

19
20
21

make the information requested available for inspection

by the Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this

22

court within 14 days of receiving the notice and accompanying information, the

23

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

24

to the discovery request. If the Non-Party timely seeks a protective order, the

25

Receiving Party shall not produce any information in its possession or control that

26

is subject to the confidentiality agreement with the Non-Party before a

27
28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 15 -

1

determination by the court.1 Absent a court order to the contrary, the Non-Party

2

shall bear the burden and expense of seeking protection in this court of its

3

Protected Material.

4

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

A.

14

11.

15

OTHERWISE PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR
When a Producing Party and/or Designating Party gives notice to Receiving

16
17

Parties that certain inadvertently produced material is subject to a claim of

18

privilege or other protection, the obligations of the Receiving Parties are those set

19

forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended

20

to modify whatever procedure may be established in an e-discovery order that

21

provides for production without prior privilege review. Pursuant to Federal Rule of

22

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

23

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

24

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

25

in the stipulated protective order submitted to the court.

26

///

27
28

1
The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a NonParty and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER

- 16 -

1

A Receiving Party who is requested to return inadvertently produced

2

material on the grounds of privilege may retain one copy of such material for the

3

sole purpose of challenging the assertion of privilege.

4

12.

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

5
6

person to seek its modification by the court in the future. No modification by the

7

parties shall have the force or effect of a Court order unless the Court approves the

8

modification.

9

12.2 Right to Assert Other Objections. By stipulating to the entry of this

10

Protective Order, no Party waives any right it otherwise would have to object to

11

disclosing or producing any information or item on any ground not addressed in

12

this Stipulated Protective Order. Similarly, no Party waives any right to object on

13

any ground to use in evidence of any of the material covered by this Protective

14

Order.
12.3 Filing Protected Material. Without a court order secured after

15
16

appropriate notice to all interested persons, a Party may not file in the public record

17

in this action any Protected Material. Protected Material may only be filed under

18

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

19

Material at issue. If a Receiving Party wishes to file under seal material from a

20

Producing Party, it must give the Producing Party and/or Designating Party the

21

opportunity to demonstrate to the Court why the information should be filed under

22

seal.

23

A Party that seeks to file under seal any Protected Material must comply

24

with Civil Local Rule 79-5; that is, if any papers to be filed with the Court contain

25

Protected Material, the proposed filing shall be accompanied by an application to

26

file the papers or the portion thereof containing the Protected Material (if such

27

portion is segregable) under seal. The application shall be directed to the judge to

28

whom the papers are directed. For motions, the parties should also file a redacted
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 17 -

1

version of the motion and supporting papers. Pursuant to Civil Local Rule 79-5, a

2

sealing order will issue only upon a request establishing that the Protected Material

3

at issue is privileged, protectable as a trade secret, or otherwise entitled to

4

protection under the law.

5

If a Receiving Party’s request to file Protected Material under seal pursuant

6

to Civil Local Rule 79-5 is denied by the court, then the Receiving Party may file

7

the information in the public record pursuant to Civil Local Rule 79-5 unless

8

otherwise instructed by the court.

9

13.

FINAL DISPOSITION

10

Within 60 days after the final disposition of this action, as defined in

11

paragraph 4, each Receiving Party must return all Protected Material to the

12

Producing Party and/or Designating Party, or destroy such material. As used in this

13

subdivision, “all Protected Material” includes all copies, abstracts, compilations,

14

summaries, and any other format reproducing or capturing any of the Protected

15

Material. Whether the Protected Material is returned or destroyed, the Receiving

16

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

17

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

18

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

19

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

20

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

21

capturing any of the Protected Material.

22

Notwithstanding this provision, Counsel are entitled to retain an archival

23

copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

24

memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

25

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

26

contain Protected Material. Any such archival copies that contain or constitute

27

Protected Material remain subject to this Protective Order as set forth in Section 4

28

(DURATION).
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 18 -

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
MANDOUR & ASSOCIATES, APC

2
3
4

DATED: May 22, 2017

/s/ Ben T. Lila
Joseph A. Mandour, III
Ben T. Lila
Attorneys for plaintiff
Discount Micro Sales

5
6
7
8

LAW OFFICE OF BRENDA A.
PRACKUP

9
10
11

DATED: May 22, 2017

/s/ Brenda A. Prackup
Brenda A. Prackup
Attorney for defendant
Silicon Networks, LLC

12
13
14

ORDER

15
16

IT IS SO ORDERED.

17
18
19
20

DATED: ___________________
May 24, 2017

____________________________________
______________________________
_
_
Hon. Karen E. Scott
E
United States Magistrate Judge

21
22
23
24
25
26
27
28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 19 -

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY

3

PROTECTIVE ORDER

4

1.

I have been asked by __________________ or its counsel to review

5

certain information, materials, and/or testimony that has/have been designated as

6

“CONFIDENTIAL” and/or “ATTORNEYS’ EYES ONLY” within the terms of the

7

Stipulated Protective Order entered in the action entitled Discount Micro sales. v.

8
9
10
11
12
13
14
15
16
17

Hard Disk Direct, et al., and related counterclaim, in the U.S. District Court, Central
District of California, Case No. 8:16-cv-2140-DOC-KES.
2.

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

Stipulated Protective Order, and I understand and acknowledge that failure to so
comply could expose me to sanctions and punishment in the nature of contempt of
court. I solemnly promise that I will not disclose in any manner any information or
item that is subject to the Stipulated Protective Order to any person or entity except
in strict compliance with the provisions of this Order.
3.

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

18

Court for the Central District of California for the purpose of enforcing the terms of

19

this Stipulated Protective Order, even if such enforcement proceedings occur after

20

termination of this action.

21

Executed on _______, 2017, at _______________________.

22
23
24

Signature: ________________________________

25
26

Printed Name:

27
28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 20 -

CERTIFICATE OF SERVICE

1
2

I hereby certify that on the below date, I filed the foregoing:

3

JOINT [PROPOSED] STIPULATED PROTECTIVE ORDER

4

with the Court’s CM/ECF filing system, which will cause notice to the following:

5
6
7
8
9
10

Brenda A. Prackup
Law Office of Brenda A. Prackup
5 Upper Newport Plaza
Newport Beach, CA 92660
Telephone: [phone]
Email: [e-mail]
Attorney for defendant,
HARD DISK DIRECT

11
12
13

Date: May 22, 2017
/s/ Ben T. Lila
Ben T. Lila

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Civil Case No. 8:16-cv-2140-DOC-KES
[PROPOSED] JOINT STIPULATED PROTECTIVE ORDER
- 21 -