Courthouse News Service v. David Yamasaki

Filing 74

PROTECTIVE ORDER by Magistrate Judge Karen E. Scott: See document for further information. (lwag)

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Robert A. Naeve (State Bar No. 106095)
[e-mail]
Cary D. Sullivan (State Bar No. 228527)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612.4408
Telephone: [phone]
Facsimile: +1.949.553.7539

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Craig E. Stewart (State Bar No. 129530)
[e-mail]
Nathaniel P. Garret (State Bar No. 248211)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104-1500
Telephone: [phone]
Facsimile: +1.415.875.5700
Attorneys for Defendant
David Yamasaki

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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COURTHOUSE NEWS SERVICE,
Plaintiff,

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v.
DAVID YAMASAKI, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE ORANGE COUNTY SUPERIOR
COURT,

Case No. 8:17-cv-00126 AG (KESx)
Assigned for all purposes to
Hon. Andrew J. Guilford
PROTECTIVE ORDER

Defendant.

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PROTECTIVE ORDER
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1.

PURPOSE AND LIMITS OF THIS ORDER
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

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

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Order. This Order does not confer blanket protections on all disclosures or

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responses to discovery, and the protection it gives from public disclosure and use

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extends only to the specific material entitled to confidential treatment under the

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applicable legal principles. This Order does not automatically authorize the filing

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under seal of material designated under this Order. Instead, the parties must

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comply with L.R. 79-5.1 if they seek to file anything under seal. This Order does

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not govern the use at trial of material designated under this Order.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

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

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designates information or items for protection under this Order as

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,”

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or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) must only

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designate specific material that qualifies under the appropriate standards. To the

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extent practicable, only those parts of documents, items, or oral or written

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communications that require protection shall be designated. Designations with a

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higher confidentiality level when a lower level would suffice are prohibited. Mass,

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indiscriminate, or routinized designations are prohibited. Unjustified designations

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expose the designator to sanctions, including the Court’s striking all confidentiality

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designations made by that designator. Designation under this Order is allowed only

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if the designation is necessary to protect material that, if disclosed to persons not

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authorized to view it, would cause competitive or other recognized harm. Material

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may not be designated if it has been made public, or if designation is otherwise

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unnecessary to protect a secrecy interest. If a designator learns that information or

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items that it designated for protection do not qualify for protection at all or do not
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qualify for the level of protection initially asserted, that designator must promptly

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notify all parties that it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY

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CONFIDENTIAL – SOURCE CODE”) to each page that contains protected

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material. For testimony given in deposition or other proceeding, the designator

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shall specify all protected testimony and the level of protection being asserted. It

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may make that designation during the deposition or proceeding, or may invoke, on

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

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

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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

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inspecting party has identified which material it would like copied and

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

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shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES

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

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copied and produced, the producing party must designate the documents, or

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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

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

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ensure that only authorized individuals are present at those proceedings when

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such material is disclosed or used. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation. Transcripts containing

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designated material shall have a legend on the title page noting the presence

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of designated material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated, and
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the level of protection being asserted. The designator shall inform the court

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reporter of these requirements. Any transcript that is prepared before the

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

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period as if it had been designated HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of

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

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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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

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assertion or correction of a designation, all recipients must make reasonable efforts

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

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3.

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

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through L.R. 37-4.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only

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

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persons 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

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

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necessary;

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

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whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of
record to whom disclosure is reasonably necessary, and who have signed the
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Agreement to Be 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

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

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4.2.6 During their depositions, witnesses in the action to whom

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

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

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a custodian or other person who otherwise possessed or knew the

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information.

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without

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Further Approval. Unless permitted in writing by the designator, a receiving

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party may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE without further

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approval only to:

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

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

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necessary to disclose 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

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

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

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a custodian or other person who otherwise possessed or knew the

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information.

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4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE Material to In-House Counsel or

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Experts. 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

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

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

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counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities in sufficient detail to determine present or potential

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involvement in any competitive decision-making. In-house counsel are not

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authorized to receive material designated HIGHLY CONFIDENTIAL –

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SOURCE CODE.

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4.4.2 A party seeking to disclose to an expert retained by outside

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counsel of record any information or item that has been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE must first make a written request to

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the designator that (1) identifies the general categories of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE information that the receiving party

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seeks permission to disclose to the expert, (2) sets forth the full name of the

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expert and the city and state of his or her primary residence, (3) attaches a

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copy of the expert’s current resume, (4) identifies the expert’s current

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employer(s), (5) identifies each person or entity from whom the expert has

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received compensation or funding for work in his or her areas of expertise

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(including in connection with litigation) in the past five years, and (6)

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identifies (by name and number of the case, filing date, and location of court)

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any litigation where the expert has offered expert testimony, including by
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PROTECTIVE ORDER
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declaration, report, or testimony at deposition or trial, in the past five years.

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If the expert believes any of this information at (4) - (6) is subject to a

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confidentiality obligation to a third party, then the expert should provide

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whatever information the expert believes can be disclosed without violating

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any confidentiality agreements, and the party seeking to disclose the

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information to the expert shall be available to meet and confer with the

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designator regarding any such confidentiality obligations.

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4.4.3 A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to

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the identified in-house counsel or expert unless, within seven days of

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

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

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

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5.

SOURCE CODE
5.1

Designation of Source Code. If production of source code is

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necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE

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CODE if it is, or includes, confidential, proprietary, or trade secret source code.

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5.2

Location and Supervision of Inspection. Any HIGHLY

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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made

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available for inspection, in a format allowing it to be reasonably reviewed and

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searched, during normal business hours or at other mutually agreeable times, at an

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office of the designating party’s counsel or another mutually agreeable location.

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The source code shall be made available for inspection on a secured computer in a

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secured room, and the inspecting party shall not copy, remove, or otherwise transfer

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any portion of the source code onto any recordable media or recordable device.

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The designator may visually monitor the activities of the inspecting party’s

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representatives during any source code review, but only to ensure that there is no
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unauthorized recording, copying, or transmission of the source code.
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Paper Copies of Source Code Excerpts. The inspecting party may

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request paper copies of limited portions of source code that are reasonably

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necessary for the preparation of court filings, pleadings, expert reports, other

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papers, or for deposition or trial. The designator shall provide all such source code

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in paper form, including Bates numbers and the label “HIGHLY CONFIDENTIAL

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– SOURCE CODE.”
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Access Record. The inspecting party shall maintain a record of any

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individual who has inspected any portion of the source code in electronic or paper

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form, and shall maintain all paper copies of any printed portions of the source code

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in a secured, locked area. The inspecting party shall not convert any of the

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information contained in the paper copies into any electronic format other than for

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the preparation of a pleading, exhibit, expert report, discovery document, deposition

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transcript, or other Court document. Any paper copies used during a deposition

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shall be retrieved at the end of each day and must not be left with a court reporter or

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any other unauthorized individual.

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6.

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PROSECUTION BAR
Absent written consent from the designator, any individual who receives

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access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE information shall not be involved in the

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prosecution of patents or patent applications concerning the field of the invention of

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the patents-in-suit for the receiving party or its acquirer, successor, predecessor, or

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other affiliate during the pendency of this action and for one year after its

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conclusion, including any appeals. “Prosecution” means drafting, amending,

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advising on the content of, or otherwise affecting the scope or content of patent

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claims or specifications. These prohibitions shall not preclude counsel from

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participating in reexamination or inter partes review proceedings to challenge or

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PROTECTIVE ORDER
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defend the validity of any patent, but counsel may not participate in the drafting of

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amended claims in any such proceedings.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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7.1

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

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

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the court where the subpoena or order issued.

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7.2

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

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

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items designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE,

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that party must:

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7.2.1 Promptly notify the designator in writing. Such notification
shall include a copy of the subpoena or court order;

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7.2.2 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

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by the subpoena or order is subject to this Order. Such notification shall

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include a copy of this Order; and

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7.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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7.3

Wait For Resolution of Protective Order. If the designator timely

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

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produce any information designated in this action as CONFIDENTIAL, HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE before determination by the court where the subpoena or order

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issued, unless the party has obtained the designator’s permission. The designator
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shall bear the burden and expense of seeking protection of its confidential material

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in that court.

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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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

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

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Order, 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

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designated material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) use reasonable efforts

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to have such person or persons execute the Agreement Be Bound (Exhibit A).

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9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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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).

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This provision is not intended modify whatever procedure may be established in an

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e-discovery order that provides for production without prior privilege review

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

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10.

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FILING UNDER SEAL
Without written permission from the designator or a Court order, a party may

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

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

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

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specific material at issue. The fact that a document has been designated under this

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Order is insufficient to justify filing under seal. Instead, parties must explain the

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basis for confidentiality of each document sought to be filed under seal. Because a

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party other than the designator will often be seeking to file designated material,

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cooperation between the parties in preparing, and in reducing the number and extent
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of, requests for under seal filing is essential. If a receiving party’s request to file

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designated material under seal pursuant to L.R. 79-5.1 is denied by the Court, then

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the receiving party may file the material in the public record unless (1) the

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designator seeks reconsideration within four days of the denial, or (2) as otherwise

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instructed by the Court.

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11.

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FINAL DISPOSITION
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

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all 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

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category, where appropriate) all the designated material that was returned or

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destroyed, and (2) affirms that the receiving party has not retained any copies,

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

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any of the designated material. This provision shall not prevent counsel from

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retaining an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,

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expert reports, attorney work product, and consultant and expert work product, even

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if such materials contain designated material. Any such archival copies remain

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subject to this Order.

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IT IS SO ORDERED.

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11/09/2017
DATED: ____________

_____________________________________
United States Magistrate Judge

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PROTECTIVE ORDER
Case No. 8:17-cv-00126 AG (KESx)

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, ______________________________________ [print or type full name],

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of _________________________________________________________________

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[print or type full address], declare under penalty of perjury that I have read in its

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entirety and understand the Protective Order that was issued by the United States

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District Court for the Central District of California on _______ [date] in the case of

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Courthouse News Service v. David Yamasaki, Case No. 8:17-cv-00126 AG (KESx).

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

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

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sanctions and punishment for contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Protective Order to any

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person or entity except in strict compliance with this Order.

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

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for the Central District of California for the purpose of enforcing this Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint ___________________________ [print or type full name]

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of _________________________________________________________________

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[print or type full address and telephone number] as my California agent for

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service of process in connection with this action or any proceedings related to

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enforcement of this Order.

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Date: ___________________________
City and State where sworn and signed: _________________________________
Printed name: _________________________
[printed name]
Signature: ____________________________
[signature]

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PROTECTIVE ORDER
Case No. 8:17-cv-00126 AG (KESx)