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)

1
2
3
4
5
6

Keith R. Gillette (Bar No. 191082)
[e-mail]
Adrian T. Lambie (Bar No. 268247)
[e-mail]
ARCHER NORRIS
2033 North Main Street, Suite 800
Walnut Creek, CA 94596-3759
Telephone: [phone]
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