Philadelphia Indemnity Insurance Company v. True Manufacturing Co. Inc.

Filing 16

STIPULATED PROTECTIVE ORDER by Judge Andrew J. Guilford re Joint Report Rule 26(f) Discovery Plan 15 . (see document for details). (dro)

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1 2 3 4 5 6 Keith R. Gillette (Bar No. 191082) Adrian T. Lambie (Bar No. 268247) ARCHER NORRIS 2033 North Main Street, Suite 800 Walnut Creek, CA 94596-3759 Telephone: 925.930.6600 Facsimile: 925.930.6620 Attorneys for Defendant TRUE MANUFACTURING CO., INC. 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DVIISION 10 11 12 13 PHILADELPHIA INDEMNITY INSURANCE COMPANY, as subrogee of Temple Beth Sholom and Lycee International De Los Angeles, dba French American School, Case No. 8:17-cv-00401 AG (KESx) Judge: Hon. Andrew J. Guilford Magistrate: Hon. Karen E. Scott STIPULATED PROTECTIVE ORDER Plaintiff, 14 15 v. 16 TRUE MANUFACTURING CO. INC. and DOES 1 to 50, inclusive, 17 (Adapted from Hon. Andrew J. Guilford‘s Standing Protective Order) Defendants. 18 19 20 Plaintiff PHILADELPHIA INDEMNITY INSURANCE COMPANY 21 (“Plaintiff”) and Defendant TRUE MANUFACTURING CO., INC. (“Defendant”), 22 through their counsel of record, hereby agree to the below Stipulated Protective 23 Order, adapted from Hon. Andrew J. Guilford‘s Standing Protective Order. 24 1. 25 Discovery in this action is likely to involve confidential, proprietary, or private 26 information requiring special protection from public disclosure and from use for 27 any purpose other than this litigation. Thus, the Court enters this Protective Order. 28 This Order does not confer blanket protections on all disclosures or responses to PURPOSE AND LIMITS OF THIS ORDER 1 STIPULATED PROTECTIVE ORDER 1 discovery, and the protection it gives from public disclosure and use extends only 2 to the specific material entitled to confidential treatment under the applicable legal 3 principles. This Order does not automatically authorize the filing under seal of 4 material designated under this Order. Instead, the parties must comply with L.R. 5 79-5.1 if they seek to file anything under seal. This Order does not govern the use 6 at trial of material designated under this Order. 7 2. 8 9 DESIGNATING PROTECTED MATERIAL 2.1 Over-Designation Prohibited. Any party or non-party who designates information or items for protection under this Order as 10 “CONFIDENTIAL” (a “designator”) must only designate specific material that 11 qualifies under the appropriate standards. To the extent practicable, only those 12 parts of documents, items, or oral or written communications that require 13 protection shall be designated. Designations with a higher confidentiality level 14 when a lower level would suffice are prohibited. Mass, indiscriminate, or 15 routinized designations are prohibited. Unjustified designations expose the 16 designator to sanctions, including the Court’s striking all confidentiality 17 designations made by that designator. Designation under this Order is allowed only 18 if the designation is necessary to protect material that, if disclosed to persons not 19 authorized to view it, would cause competitive or other recognized harm. Material 20 may not be designated if it has been made public, or if designation is otherwise 21 unnecessary to protect a secrecy interest. If a designator learns that information or 22 items that it designated for protection do not qualify for protection at all or do not 23 qualify for the level of protection initially asserted, that designator must promptly 24 notify all parties that it is withdrawing the mistaken designation. 25 2.2 Manner and Timing of Designations. Designation under this Order 26 requires the designator to affix the applicable legend (“CONFIDENTIAL,” or 27 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” to each page that 28 contains protected material. For testimony given in deposition or other proceeding, 2 STIPULATED PROTECTIVE ORDER 1 the designator shall specify all protected testimony and the level of protection 2 being asserted. It may make that designation during the deposition or proceeding, 3 or may invoke, on the record or by written notice to all parties on or before the 4 next business day, a right to have up to 21 days from the deposition or proceeding 5 to make its designation. 6 2.2.1 A party or non-party that makes original documents or materials 7 available for inspection need not designate them for protection until after the 8 inspecting party has identified which material it would like copied and 9 produced. During the inspection and before the designation, all material 10 shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES 11 ONLY. After the inspecting party has identified the documents it wants 12 copied and produced, the producing party must designate the documents, or 13 portions thereof, that qualify for protection under this Order. 14 2.2.2 Parties shall give advance notice if they expect a deposition or 15 other proceeding to include designated material so that the other parties can 16 ensure that only authorized individuals are present at those proceedings 17 when such material is disclosed or used. The use of a document as an 18 Exhibit at a deposition shall not in any way affect its designation. 19 Transcripts containing designated material shall have a legend on the title 20 page noting the presence of designated material, and the title page shall be 21 followed by a list of all pages (including line numbers as appropriate) that 22 have been designated, and the level of protection being asserted. The 23 designator shall inform the court reporter of these requirements. Any 24 transcript that is prepared before the expiration of the 21-day period for 25 designation shall be treated during that period as if it had been designated 26 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise 27 agreed. After the expiration of the 21-day period, the transcript shall be 28 treated only as actually designated. 3 STIPULATED PROTECTIVE ORDER 1 2.3 Inadvertent Failures to Designate. An inadvertent failure to designate 2 does not, standing alone, waive protection under this Order. Upon timely assertion 3 or correction of a designation, all recipients must make reasonable efforts to ensure 4 that the material is treated according to this Order. 5 3. 6 All challenges to confidentiality designations shall proceed under L.R. 37-1 7 through L.R. 37-4. 8 4. 9 CHALLENGING CONFIDENTIALITY DESIGNATIONS ACCESS TO DESIGNATED MATERIAL 4.1 Basic Principles. A receiving party may use designated material only 10 for this litigation. Designated material may be disclosed only to the categories of 11 persons and under the conditions described in this Order. 12 4.2 Disclosure of CONFIDENTIAL Material Without Further 13 Approval. Unless otherwise ordered by the Court or permitted in writing by the 14 designator, a receiving party may disclose any material designated 15 CONFIDENTIAL only to: 16 4.2.1 The receiving party’s outside counsel of record in this action and 17 employees of outside counsel of record to whom disclosure is reasonably 18 necessary; 19 4.2.2 The officers, directors, and employees of the receiving party to 20 whom disclosure is reasonably necessary, and who have signed the 21 Agreement to Be Bound (Exhibit A); 22 4.2.3 Experts retained by the receiving party’s outside counsel of 23 record to whom disclosure is reasonably necessary, and who have signed the 24 Agreement to Be Bound (Exhibit A); 25 4.2.4 The Court and its personnel; 26 4.2.5 Outside court reporters and their staff, professional jury or trial 27 consultants, and professional vendors to whom disclosure is reasonably 28 necessary, and who have signed the Agreement to Be Bound (Exhibit A); 4 STIPULATED PROTECTIVE ORDER 1 4.2.6 During their depositions, witnesses in the action to whom 2 disclosure is reasonably necessary and who have signed the Agreement to 3 Be Bound (Exhibit A); and 4 4.2.7 The author or recipient of a document containing the material, or 5 a custodian or other person who otherwise possessed or knew the 6 information. 7 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES 8 ONLY Material Without Further Approval. Unless permitted in writing by the 9 designator, a receiving party may disclose material designated HIGHLY 10 CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to: 4.3.1 The receiving party’s outside counsel of record in this action 11 12 and employees of outside counsel of record to whom it is reasonably 13 necessary to disclose the information; 14 4.3.2 The Court and its personnel; 15 4.3.3 Outside court reporters and their staff, professional jury or trial 16 consultants, and professional vendors to whom disclosure is reasonably 17 necessary, and who have signed the Agreement to Be Bound (Exhibit A); 18 and 19 4.3.4 The author or recipient of a document containing the material, 20 or a custodian or other person who otherwise possessed or knew the 21 information. 22 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 23 CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel 24 or Experts. Unless agreed to in writing by the designator: 25 4.4.1 A party seeking to disclose to in-house counsel any material 26 designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must 27 first make a written request to the designator providing the full name of the 28 in-house counsel, the city and state of such counsel’s residence, and such 5 STIPULATED PROTECTIVE ORDER 1 counsel’s current and reasonably foreseeable future primary job duties and 2 responsibilities in sufficient detail to determine present or potential 3 involvement in any competitive decision-making. 4 4.4.2 A party seeking to disclose to an expert retained by outside 5 counsel of record any information or item that has been designated HIGHLY 6 CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written 7 request to the designator that (1) identifies the general categories of 8 HIGHLY CONFIDENTIAL – ATTORNEY EYES information that the 9 receiving party seeks permission to disclose to the expert, (2) sets forth the 10 full name of the expert and the city and state of his or her primary residence, 11 (3) attaches a copy of the expert’s current resume, (4) identifies the expert’s 12 current employer(s), (5) identifies each person or entity from whom the 13 expert has received compensation or funding for work in his or her areas of 14 expertise (including in connection with litigation) in the past five years, and 15 (6) identifies (by name and number of the case, filing date, and location of 16 court) any litigation where the expert has offered expert testimony, including 17 by declaration, report, or testimony at deposition or trial, in the past five 18 years. If the expert believes any of this information at (4) - (6) is subject to a 19 confidentiality obligation to a third party, then the expert should provide 20 whatever information the expert believes can be disclosed without violating 21 any confidentiality agreements, and the party seeking to disclose the 22 information to the expert shall be available to meet and confer with the 23 designator regarding any such confidentiality obligations. 24 4.4.3 A party that makes a request and provides the information 25 specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to 26 the identified in-house counsel or expert unless, within seven days of 27 delivering the request, the party receives a written objection from the 28 designator providing detailed grounds for the objection. 6 STIPULATED PROTECTIVE ORDER 1 4.4.4 All challenges to objections from the designator shall proceed under L.R. 37-1 through L.R. 37-4. 2 3 5. 4 PROSECUTION BAR Absent written consent from the designator, any individual who receives 5 access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY information 6 shall not be involved in the prosecution patents or patent applications concerning 7 the field of the invention of the patents-in-suit for the receiving party or its 8 acquirer, successor, predecessor, or other affiliate during the pendency of this 9 action and for one year after its conclusion, including any appeals. “Prosecution” 10 means drafting, amending, advising on the content of, or otherwise affecting the 11 scope or content of patent claims or specifications. These prohibitions shall not 12 preclude counsel from participating in reexamination or inter partes review 13 proceedings to challenge or defend the validity of any patent, but counsel may not 14 participate in the drafting of amended claims in any such proceedings. 15 6. 16 PRODUCED IN OTHER LITIGATION 17 PROTECTED MATERIAL SUBPOENAED OR ORDERED 6.1 Subpoenas and Court Orders. This Order in no way excuses 18 non¬compliance with a lawful subpoena or court order. The purpose of the duties 19 described in this section is to alert the interested parties to the existence of this 20 Order and to give the designator an opportunity to protect its confidentiality 21 interests in the court where the subpoena or order issued. 22 6.2 Notification Requirement. If a party is served with a subpoena or a 23 court order issued in other litigation that compels disclosure of any information or 24 items designated in this action as CONFIDENTIAL or HIGHLY 25 CONFIDENTIAL – ATTORNEY EYES ONLY that party must: 26 27 6.2.1 Promptly notify the designator in writing. Such notification shall include a copy of the subpoena or court order; 28 7 STIPULATED PROTECTIVE ORDER 1 6.2.2 Promptly notify in writing the party who caused the subpoena 2 or order to issue in the other litigation that some or all of the material 3 covered by the subpoena or order is subject to this Order. Such notification 4 shall include a copy of this Order; and 5 6.2.3 Cooperate with all reasonable procedures sought by the 6 designator whose material may be affected. 7 6.3 Wait For Resolution of Protective Order. If the designator timely 8 seeks a protective order, the party served with the subpoena or court order shall not 9 produce any information designated in this action as CONFIDENTIAL or 10 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY before a determination 11 by the court where the subpoena or order issued, unless the party has obtained the 12 designator’s permission. The designator shall bear the burden and expense of 13 seeking protection of its confidential material in that court. 14 7. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 15 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 16 designated material to any person or in any circumstance not authorized under this 17 Order, it must immediately (1) notify in writing the designator of the unauthorized 18 disclosures, (2) use its best efforts to retrieve all unauthorized copies of the 19 designated material, (3) inform the person or persons to whom unauthorized 20 disclosures were made of all the terms of this Order, and (4) use reasonable efforts 21 to have such person or persons execute the Agreement to Be Bound (Exhibit A). 22 8. 23 OTHERWISE PROTECTED MATERIAL 24 INADVERTENT PRODUCTION OF PRIVILEGED OR When a producing party gives notice that certain inadvertently produced 25 material is subject to a claim of privilege or other protection, the obligations of the 26 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). 27 This provision is not intended to modify whatever procedure may be established in 28 8 STIPULATED PROTECTIVE ORDER 1 an e-discovery order that provides for production without prior privilege review 2 pursuant to Federal Rule of Evidence 502(d) and (e). 3 9. FILING UNDER SEAL 4 Without written permission from the designator or a Court order, a party 5 may not file in the public record in this action any designated material. A party 6 seeking to file under seal any designated material must comply with L.R. 79-5.1. 7 Filings may be made under seal only pursuant to a court order authorizing the 8 sealing of the specific material at issue. The fact that a document has been 9 designated under this Order is insufficient to justify filing under seal. Instead, 10 parties must explain the basis for confidentiality of each document sought to be 11 filed under seal. Because a party other than the designator will often be seeking to 12 file designated material, cooperation between the parties in preparing, and in 13 reducing the number and extent of, requests for under seal filing is essential. If a 14 receiving party’s request to file designated material under seal pursuant to L.R. 79- 15 5.1 is denied by the Court, then the receiving party may file the material in the 16 public record unless (1) the designator seeks reconsideration within four days of 17 the denial, or (2) as otherwise 18 instructed by the Court. 19 11. 20 FINAL DISPOSITION Within 60 days after the final disposition of this action, each party shall 21 return all designated material to the designator or destroy such material, including 22 all copies, abstracts, compilations, summaries, and any other format reproducing or 23 capturing any designated material. The receiving party must submit a written 24 certification to the designator by the 60-day deadline that (1) identifies (by 25 category, where appropriate) all the designated material that was returned or 26 destroyed, and (2) affirms that the receiving party has not retained any copies, 27 abstracts, compilations, summaries, or any other format reproducing or capturing 28 any of the designated material. This provision shall not prevent counsel from 9 STIPULATED PROTECTIVE ORDER 1 retaining an archival copy of all pleadings, motion papers, trial, deposition, and 2 hearing transcripts, legal memoranda, correspondence, deposition and trial 3 exhibits, expert reports, attorney work product, and consultant and expert work 4 product, even if such materials contain designated material. Any such archival 5 copies remain subject to this Order. 6 7 Dated: April 28, 2017 8 ARCHER NORRIS /s/ Adrian t. Lambie _________________________________ By: Adrian T. Lambie Attorney for Defendant TRUE MANUFACTURING CO., INC. 9 10 11 12 Dated: April 28, 2017 13 DENENBERG TUFFLEY PLLC /s/ Media Benjamin _________________________________ By: Media Benjamin PHILADELPHIA INDEMNITY INSURANCE COMPANY 14 15 16 ATTESTATION (L.R.-5.434(i)) 17 18 I, Adrian T. Lambie, attest that all other signatories listed, and on whose 19 behalf the filing is submitted, concur in the filing’s content and have authorized the 20 filing. 21 22 23 Dated: April 28, 2017 /s/ Adrian T. Lambie ________________________________ 24 25 26 27 28 10 STIPULATED PROTECTIVE ORDER 1 2 3 ORDER The Court, having reviewed the foregoing Sipulated Protective Order, and good cause appearing therefor, orders as follows: 4 The foregoing Stipulated Protective Order is Granted. 5 IT IS SO ORDERED. 6 7 8 9 Dated: June 12, 2017 _____________________________________ United States District Judge Andrew J Guilford 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 AGREEMENT TO BE BOUND 3 I, ____________________________, [print or type full name], of 4 _____________________________________, [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the 6 Protective Order that was issued by the United States District Court for the Central 7 District of California on ____________ [date] in the case of Philadelphia 8 Indemnity Insurance Company v. True Manufacturing Co. Inc., Case No. 8:17-cv- 9 00401 AG (KESx). I agree to comply with and to be bound by all the terms of this 10 Protective Order, and I understand and acknowledge that failure to so comply 11 could expose me to sanctions and punishment for contempt. I solemnly promise 12 that I will not disclose in any manner any information or item that is subject to this 13 Protective Order to any person or entity except in strict compliance with this 14 Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing this Order, 17 even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint ____________________________ [print or type full name] of 19 _____________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Order. 22 23 Date: __________________________ 24 City and State where sworn and signed: __________________________ 25 Printed name: __________________________ 26 27 28 [printed name] Signature: __________________________ [signature] 1 AGREEMENT TO BE BOUND

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