Dennis MacDougall et al v. American Honda Motor Co., Inc et al

Filing 60

PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 56 . (see document for details) (dro)

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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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)
) Case No. 8:17−cv−01079−AG (DFMx)
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) PROTECTIVE ORDER
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Plaintiffs,
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v.
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AMERICAN HONDA MOTOR CO.,
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INC., and HONDA NORTH AMERICA, )
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INC.,
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Defendants.
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DENNIS MACDOUGALL, RAY SEOW,
PRABHANJAN KAVURI, RICHARD
FRICK, JOSEPH RYAN PARKER, and
BRYAN LENTZ, individually and on
behalf of all others similarly situated,

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PURPOSE AND LIMITS OF THIS ORDER

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

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information requiring special protection from public disclosure and from use for any

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purpose other than this litigation. Thus, the Court enters this Protective Order. This Order

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does not confer blanket protections on all disclosures or responses to discovery, and the

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protection it gives from public disclosure and use extends only to the specific material

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entitled to confidential treatment under the applicable legal principles. This Order

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not automatically authorize the filing under seal of material designated under this Order.
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does

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Instead, the parties must comply with L.R. 79-5.1 if they seek to file anything under seal.

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

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DESIGNATING PROTECTED MATERIAL
2.1.

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

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

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CONFIDENTIAL – ATTORNEY EYES ONLY,” must only designate specific material

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that qualifies under the appropriate standards. To the extent practicable, only those parts

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of documents, items, or oral or written communications that require protection shall be

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designated. Designations with a higher confidentiality level when a lower level would

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suffice are prohibited. Mass, indiscriminate, or routinized designations are prohibited.

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Unjustified designations expose the designator to sanctions, including the Court’s striking

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all confidentiality designations made by that designator. Designation under this Order is

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allowed only if the designation is necessary to protect material that, if disclosed to persons

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not 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 items

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

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level of protection initially asserted, that designator must promptly notify all parties that

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it is withdrawing the mistaken designation.

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2.2.

Manner and Timing of Designations. Designation under this Order requires

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

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CONFIDENTIAL – ATTORNEY EYES ONLY”) to each page that contains protected

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

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specify all protected testimony. It may make that designation during the deposition or

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

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the next business day, a right to have up to 30 days from the deposition or proceeding to

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make its designation.

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“HIGHLY

2.2.1.

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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

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the 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.
2.2.2.

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

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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

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

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at a deposition shall not in any way affect its designation. Transcripts

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

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the presence of designated material, and the title page shall be followed by

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a list of all pages (including line numbers as appropriate) that have been

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designated, and the level of protection being asserted. The designator shall

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inform the court reporter of these requirements. Any transcript that is

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prepared before the expiration of the 30-day period for designation shall be

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treated during that period as if it had been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed.

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After the expiration of the 30-day period, the transcript shall be treated only

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as actually designated.

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2.3.

Inadvertent Failures to Designate. An inadvertent failure to designate does

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not, standing alone, waive protection under this Order. Upon timely assertion or correction

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of a designation, all recipients must make reasonable efforts to ensure that the material is

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treated according to this Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1 through
L.R. 37-4.
ACCESS TO DESIGNATED MATERIAL
4.1.

Basic Principles. A receiving party may use designated material only for this

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litigation. Designated material may be disclosed only to the categories of persons and

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under the conditions described in this Order.

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4.2.

Disclosure of CONFIDENTIAL Material Without Further

Approval.

Unless otherwise ordered by the Court or permitted in writing by the designator, a
receiving party may disclose any material designated CONFIDENTIAL only to:
4.2.1.

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

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employees of outside counsel of record to whom disclosure is reasonably

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necessary;
4.2.2.

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The receiving party’s in-house counsel, including those

individuals

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working in the legal departments of a party or its parent, subsidiaries or

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affiliates, including the legal department’s staff or contract attorneys,

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paralegals, investigative, technical, secretarial, and clerical personnel;
4.2.3.

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

disclosure is reasonably necessary;

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4.2.4.

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Experts retained by the receiving party’s outside counsel of record to

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whom disclosure is reasonably necessary, and who have signed

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the

Agreement to Be Bound (Exhibit A);

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4.2.5.

The Court and its personnel;

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4.2.6.

Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is

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

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reasonably

4.2.7.

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During their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the Agreement to Be Bound

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(Exhibit A); and
4.2.8.

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

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

4.3.

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY

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Without Further Approval. Unless permitted in writing by the designator, a receiving party

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may disclose material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY without further approval only to:
4.3.1.

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

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

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to disclose the information;
4.3.2.

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The receiving party’s in-house counsel, including those

individuals

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working in the legal departments of a party or its parent, subsidiaries or

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affiliates, including the legal department’s staff or contract attorneys,

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paralegals, investigative, technical, secretarial, and clerical personnel;

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4.3.3.

The Court and its personnel;

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4.3.4.

Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is

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

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and
4.3.5.

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4.4.

reasonably

The author or recipient of a document containing the material.

Procedures for Approving or Objecting to Disclosure of HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY to Experts. Unless agreed to in

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writing by the designator:

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4.4.1.

A party seeking to disclose to an expert retained by outside counsel of

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record any information or item that has been designated

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CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written
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HIGHLY

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

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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY information that

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

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

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

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

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whom the expert has received compensation or funding for work in his or

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her areas of expertise (including in connection with litigation) in the

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five years, and (6) identifies (by name and number of the case, filing date,

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and location of court) any litigation where the expert has offered expert

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testimony, including by declaration, report, or testimony at deposition

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trial, in the past five years. If the expert believes any of this information at

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(4) - (6) is subject to a confidentiality obligation to a third party, then the

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expert should provide whatever information the expert believes can be

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disclosed without violating any confidentiality agreements, and the

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seeking to disclose the information to the expert shall be available to meet

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and confer with the designator regarding any such confidentiality

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obligations.

past

or

party

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4.4.2.

A party that makes a request and provides the information specified in

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paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified

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expert unless, within seven days of delivering the request, the party receives a

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written objection from the designator providing detailed grounds for

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objection.

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4.4.3.

All challenges to objections from the designator shall proceed under

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

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the

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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OTHER LITIGATION

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5.1.

Subpoenas and Court Orders. This Order in no way excuses

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non-

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

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this section is to alert the interested parties to the existence of this Order and to give the

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designator an opportunity to protect its confidentiality interests in the court where the

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subpoena or order issued.

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5.2.

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

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

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designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY,” that party must:
5.2.1.

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Promptly notify the designator in writing. Such notification shall

include a copy of the subpoena or court order;

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5.2.2.

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

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

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

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copy of this Order; and
5.2.3.

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whose material may be affected.

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Cooperate with all reasonable procedures sought by the designator

5.3.

Wait For Resolution of Protective Order. If the designator timely seeks a

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protective order, the party served with the subpoena or court order shall not produce any

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information designated in this action as CONFIDENTIAL before a determination by the

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

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

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confidential material in that court.

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

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

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

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of this Order, and (4) use reasonable efforts to have such person or persons execute the

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Agreement to Be Bound (Exhibit A).

material, (3)

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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 material is

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subject to a claim of privilege or other protection, the obligations of the receiving parties

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

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

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provides for production without prior privilege review pursuant to Federal Rule of

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Evidence 502(d) and (e).

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FILING UNDER SEAL

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Without written permission from the designator or a Court order, a party may not

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file in the public record in this action any designated material. A party seeking to file under

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

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seal only pursuant to a court order authorizing the sealing of the specific material at issue.

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The fact that a document has been designated under this Order is insufficient to justify

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filing under seal. Instead, parties must explain the basis for confidentiality of each

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document sought to be filed under seal. Because a party other than the designator will

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often be seeking to file designated material, cooperation between the parties in preparing,

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and in reducing the number and extent of, requests for under seal filing is essential. If a

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receiving party’s request to file designated material under seal pursuant to L.R. 79-5.1 is

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denied by the Court, then the receiving party may file the material in the public record

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unless (1) the designator seeks reconsideration within four days of the denial, or (2) as

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otherwise instructed by the Court.

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FINAL DISPOSITION

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

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

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

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designated material. The receiving party must submit a written certification to the

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designator by the 60-day deadline that (1) identifies (by category, where appropriate) all

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the designated material that was returned or destroyed, and (2) affirms that the receiving

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party has not retained any copies, abstracts, compilations, summaries, or any other format

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reproducing or capturing any of the designated material. This provision shall not prevent

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

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and 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 if

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

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this Order.

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IT IS SO ORDERED.

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DATED: December 29, 2017

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Honorable Douglas F. McCormick

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United States Magistrate Judge

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any

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EXHIBIT A

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AGREEMENT TO BE BOUND
I,

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[print

or

type

full

name],

of

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

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

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States District Court for the Central District of California on

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MacDougall, et al. v. American Honda Motor Co., Inc., et al.,

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(DFMx). 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 sanctions

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and punishment for contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Protective Order to any person or entity

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except in strict compliance with this Order.

[date] in the case of
8:17−cv−01079−AG

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

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

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enforcement proceedings occur after termination of this action.
I hereby appoint

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[print or type full name] of

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[print or type full address and telephone

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number] as my California agent for service of process in connection with this action or

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any proceedings related to enforcement of this Order.

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Date:

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City and State where sworn and signed:

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Printed name:
[printed name]

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Signature:
[signature]

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