Cameron Gainer v. The Ketchum Group, Inc.

Filing 26

PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 25 . (see document for details). (dro)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12
13

CAMERON GAINER, an individual
Plaintiff,

14
15

Case No.: 8:17-CV-00672 JVS (DFMx)

PROTECTIVE ORDER

vs.

16
17

THE KETCHUM GROUP, INC., d/b/a
OUTDOOR TECHNOLOGY,

18

Defendant.

DISCOVERY DOCUMENT:
REFERRED TO MAGISTRATE
JUDGE DOUGLAS F.
MCCORMICK

19
20

THE KETCHUM GROUP, INC., d/b/a
OUTDOOR TECHNOLOGY,

21
Counter-claimant,

22
23

vs.

24
25
26

CAMERON GAINER, an individual
Counter-defendant

27
28

PROTECTIVE ORDER

1

1.

PURPOSE AND LIMITS OF THIS ORDER

2

Discovery in this action is likely to involve confidential, proprietary, or

3

private information requiring special protection from public disclosure and from use

4

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

5

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

6

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

7

to the specific material entitled to confidential treatment under the applicable legal

8

principles. This Order does not automatically authorize the filing under seal of

9

material designated under this Order. Instead, the parties must comply with L.R. 79-

10

5.1 if they seek to file anything under seal. This Order does not govern the use at

11

trial of material designated under this Order.

12

2.

13

DESIGNATING PROTECTED MATERIAL
2.1

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

14

information or items for protection under this Order as “CONFIDENTIAL” or

15

“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” must only designate

16

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

17

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

18

that require protection shall be designated. Designations with a higher

19

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

20

indiscriminate, or routinized designations are prohibited. Unjustified designations

21

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

22

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

23

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

24

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

25

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

26

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

27

items that it designated for protection do not qualify for protection at all or do not

28
-2PROTECTIVE ORDER

1

qualify for the level of protection initially asserted, that designator must promptly

2

notify all parties that it is withdrawing the mistaken designation.

3

2.2

Manner and Timing of Designations. Designation under this Order

4

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

5

“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that

6

contains protected material. For testimony given in deposition or other proceeding,

7

the designator shall specify all protected testimony and the level of protection being

8

asserted. It may make that designation during the deposition or proceeding, or may

9

invoke, on the record or by written notice to all parties on or before the next

10

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

11

make its designation.

12

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

13

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

14

inspecting party has identified which material it would like copied and

15

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

16

be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.

17

After the inspecting party has identified the documents it wants copied and

18

produced, the producing party must designate the documents, or portions

19

thereof, that qualify for protection under this Order.

20

2.2.2 Parties shall give advance notice if they expect a deposition or

21

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

22

ensure that only authorized individuals are present at those proceedings when

23

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

24

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

25

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

26

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

27

pages (including line numbers as appropriate) that have been designated, and

28

the level of protection being asserted. The designator shall inform the court
-3PROTECTIVE ORDER

1

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

2

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

3

period as if it had been designated HIGHLY CONFIDENTIAL –

4

ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of

5

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

6

2.3

Inadvertent Failures to Designate. An inadvertent failure to

7

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

8

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

9

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

10

3.

11

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

12

through L.R. 37-4.

13

4.

14

ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only

15

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

16

persons and under the conditions described in this Order.

17

4.2

Disclosure of CONFIDENTIAL Material Without Further

18

Approval. Unless otherwise ordered by the Court or permitted in writing by the

19

designator, a receiving party may disclose any material designated

20

CONFIDENTIAL only to:

21

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

22

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

23

necessary;

24

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

25

whom disclosure is reasonably necessary, and who have signed the

26

Agreement to Be Bound (Exhibit A);

27
28
-4PROTECTIVE ORDER

4.2.3 Experts retained by the receiving party’s outside counsel of

1
2

record to whom disclosure is reasonably necessary, and who have signed the

3

Agreement to Be Bound (Exhibit A);

4

4.2.4 The Court and its personnel;

5

4.2.5 Outside court reporters and their staff, professional jury or trial

6

consultants, and professional vendors to whom disclosure is reasonably

7

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

8

4.2.6 During their depositions, witnesses in the action to whom

9

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

10

Bound (Exhibit A); and

11

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

12

a custodian or other person who otherwise possessed or knew the information.

13

4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

14

ONLY Without Further Approval. Unless permitted in writing by the designator,

15

a receiving party may disclose material designated HIGHLY CONFIDENTIAL –

16

ATTORNEY EYES ONLY without further approval only to:

17

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

18

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

19

disclose the information;

20

4.3.2 The Court and its personnel;

21

4.3.3 Outside court reporters and their staff, professional jury or trial

22

consultants, and professional vendors to whom disclosure is reasonably

23

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

24

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

25

a custodian or other person who otherwise possessed or knew the information.

26

4.4

Procedures for Approving or Objecting to Disclosure of HIGHLY

27

CONFIDENTIAL – ATTORNEY EYES ONLY Material to In-House Counsel

28

or Experts. Unless agreed to in writing by the designator:
-5PROTECTIVE ORDER

1

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

2

designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must

3

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

4

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

5

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

6

responsibilities in sufficient detail to determine present or potential

7

involvement in any competitive decision-making.

8

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

9

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

10

CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written

11

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

12

CONFIDENTIAL – ATTORNEY EYES ONLY information that the

13

receiving party seeks permission to disclose to the expert, (2) sets forth the

14

full name of the expert and the city and state of his or her primary residence,

15

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

16

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

17

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

18

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

19

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

20

any litigation where the expert has offered expert testimony, including by

21

declaration, report, or testimony at deposition or trial, in the past five years. If

22

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

23

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

24

whatever information the expert believes can be disclosed without violating

25

any confidentiality agreements, and the party seeking to disclose the

26

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

27

designator regarding any such confidentiality obligations.

28
-6PROTECTIVE ORDER

1

4.4.3 A party that makes a request and provides the information

2

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

3

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

4

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

5

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

6

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

7
8

5.

9

PRODUCED IN OTHER LITIGATION

10

PROTECTED MATERIAL SUBPOENAED OR ORDERED

5.1

Subpoenas and Court Orders. This Order in no way excuses non-

11

compliance with a lawful subpoena or court order. The purpose of the duties

12

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

13

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

14

in the court where the subpoena or order issued.

15

5.2

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

16

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

17

items designated in this action as CONFIDENTIAL or HIGHLY CONFIDENTIAL

18

– ATTORNEY EYES ONLY that party must:

19

5.2.1 Promptly notify the designator in writing. Such notification shall

20

include a copy of the subpoena or court order;

21

5.2.2 Promptly notify in writing the party who caused the subpoena or order

22

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

23

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

24

copy of this Order; and

25

5.2.3 Cooperate with all reasonable procedures sought by the designator

26

whose material may be affected.

27

5.3

28

Wait For Resolution of Protective Order. If the designator timely

seeks a protective order, the party served with the subpoena or court order shall not
-7PROTECTIVE ORDER

1

produce any information designated in this action as CONFIDENTIAL or HIGHLY

2

CONFIDENTIAL – ATTORNEY EYES ONLY before a determination by the court

3

where the subpoena or order issued, unless the party has obtained the designator’s

4

permission. The designator shall bear the burden and expense of seeking protection

5

of its confidential material in that court.

6

6.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

7

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

8

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

9

Order, it must immediately (1) notify in writing the designator of the unauthorized

10

disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

11

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

12

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

13

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

14

7.

15

PROTECTED MATERIAL

16

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a producing party gives notice that certain inadvertently produced

17

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

18

receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

19

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

20

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

21

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

22

8.

23

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

24

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

25

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

26

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

27

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

28

Order is insufficient to justify filing under seal. Instead, parties must explain the
-8PROTECTIVE ORDER

1

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

2

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

3

cooperation between the parties in preparing, and in reducing the number and extent

4

of, requests for under seal filing is essential. If a receiving party’s request to file

5

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

6

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

7

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

8

instructed by the Court.

9

9.

10

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

11

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

12

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

13

capturing any designated material. The receiving party must submit a written

14

certification to the designator by the 60-day deadline that (1) identifies (by category,

15

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

16

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

17

compilations, summaries, or any other format reproducing or capturing any of the

18

designated material. This provision shall not prevent counsel from retaining an

19

archival copy of all pleadings, motion papers, trial, deposition, and hearing

20

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

21

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

22

materials contain designated material. Any such archival copies remain subject to

23

this Order.

24

IT IS SO ORDERED.

25
26
27

DATED: August 8, 2017

_____________________________________
Hon. Douglas F. McCormick
United States Magistrate Judge

28
-9PROTECTIVE ORDER

1

EXHIBIT A

2

AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

4

_________________ [print or type full address], declare under penalty of perjury

5

that I have read in its entirety and understand the Protective Order that was issued

6

by the United States District Court for the Central District of California on _______

7

[date] in the case of ___________ [insert formal name of the case and the number

8

and initials assigned to it by the court]. I agree to comply with and to be bound by

9

all the terms of this Protective Order, and I understand and acknowledge that failure

10

to so comply could expose me to sanctions and punishment for contempt. I solemnly

11

promise that I will not disclose in any manner any information or item that is subject

12

to this Protective Order to any person or entity except in strict compliance with this

13

Order.

14

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

15

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

16

such enforcement proceedings occur after termination of this action.

17

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

18

_______________________________________ [print or type full address and

19

telephone number] as my California agent for service of process in connection with

20

this action or any proceedings related to enforcement of this Order.

21
22

Date: ___________________________

23

City and State where sworn and signed: _________________________________

24

Printed name: ____________________

25

[printed name]

26

Signature: _______________________
[signature]

27
28

- 10 PROTECTIVE ORDER