Rockwell Collins, Inc. v. Jacob Wallace

Filing 27

PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 26 . (kh)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ROCKWELL COLLINS, INC., a Delaware Corporation 12 13 14 Plaintiff, v. JACOB WALLACE, an individual 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4830-3910-4604.1 Defendant. Case No: 8:17-cv-01369 AG (JCGx) PROTECTIVE ORDER 1 1. PURPOSE AND LIMITS OF THIS ORDER Discovery in this action is likely to involve confidential, proprietary, or private 2 3 information requiring special protection from public disclosure and from use for any 4 purpose other than this litigation. Thus, the Court enters this Protective Order. This 5 Order does not confer blanket protections on all disclosures or responses to discovery, 6 and the protection it gives from public disclosure and use extends only to the specific 7 material entitled to confidential treatment under the applicable legal principles. This 8 Order does not automatically authorize the filing under seal of material designated under 9 this Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file anything 10 under seal. This Order does not govern the use at trial of material designated under this 11 Order. 12 2. DESIGNATING PROTECTED MATERIAL 2.1 13 Over-Designation Prohibited. Any party or non-party who designates 14 information or items for protection under this Order as “CONFIDENTIAL,” “HIGHLY 15 CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL – 16 SOURCE CODE” (a “designator”) must only designate specific material that qualifies 17 under the appropriate standards. To the extent practicable, only those parts of documents, 18 items, or oral or written communications that require protection shall be designated. 19 Designations with a higher confidentiality level when a lower level would suffice are 20 prohibited. Mass, indiscriminate, or routinized designations are prohibited. Unjustified 21 designations expose the designator to sanctions, including the Court’s striking all 22 confidentiality designations made by that designator. Designation under this Order is 23 allowed only if the designation is necessary to protect material that, if disclosed to 24 persons not authorized to view it, would cause competitive or other recognized harm. 25 Material 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 items 27 that it designated for protection do not qualify for protection at all or do not qualify for 28 the level of protection initially asserted, that designator must promptly notify all parties 1 4830-3910-4604.1 1 that it is withdrawing the mistaken designation. 2 2.2 Manner and Timing of Designations. Designation under this Order 3 requires the designator to affix the applicable legend (“CONFIDENTIAL,” “HIGHLY 4 CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL – 5 SOURCE CODE”) to each page that contains protected material. For testimony given in 6 deposition or other proceeding, the designator shall specify all protected testimony and 7 the level of protection being asserted. It may make that designation during the deposition 8 or proceeding, or may invoke, on the record or by written notice to all parties on or 9 before the next business day, a right to have up to 21 days from the deposition or 10 proceeding to make its designation. 11 2.2.1 A party or non-party that makes original documents or materials 12 available for inspection need not designate them for protection until after the 13 inspecting party has identified which material it would like copied and produced. 14 During the inspection and before the designation, all material shall be treated as 15 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting 16 party has identified the documents it wants copied and produced, the producing 17 party must designate the documents, or portions thereof, that qualify for protection 18 under this Order. 19 2.2.2 Parties shall give advance notice if they expect a deposition or other 20 proceeding to include designated material so that the other parties can ensure that 21 only authorized individuals are present at those proceedings when such material is 22 disclosed or used. The use of a document as an exhibit at a deposition shall not in 23 any way affect its designation. Transcripts containing designated material shall 24 have a legend on the title page noting the presence of designated material, and the 25 title page shall be followed by a list of all pages (including line numbers as 26 appropriate) that have been designated, and the level of protection being asserted. 27 The designator shall inform the court reporter of these requirements. Any 28 transcript that is prepared before the expiration of the 21-day period for 2 4830-3910-4604.1 1 designation shall be treated during that period as if it had been designated 2 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise 3 agreed. After the expiration of the 21-day period, the transcript shall be treated 4 only as actually designated. 5 2.3 Inadvertent Failures to Designate. An inadvertent failure to designate 6 does not, standing alone, waive protection under this Order. Upon timely assertion or 7 correction of a designation, all recipients must make reasonable efforts to ensure that the 8 material is treated according to this Order. 9 3. 10 CHALLENGING CONFIDENTIALITY DESIGNATIONS All challenges to confidentiality designations shall proceed under L.R. 37-1 11 through L.R. 37-4. 12 4. ACCESS TO DESIGNATED MATERIAL 13 4.1 Basic Principles. A receiving party may use designated material only for 14 this litigation. Designated material may be disclosed only to the categories of persons 15 and under the conditions described in this Order. 16 4.2 Disclosure of CONFIDENTIAL Material Without Further Approval. 17 Unless otherwise ordered by the Court or permitted in writing by the designator, a 18 receiving party may disclose any material designated CONFIDENTIAL only to: 19 4.2.1 The receiving party’s outside counsel of record in this action and 20 employees of outside counsel of record to whom disclosure is reasonably 21 necessary; 22 4.2.2 The officers, directors, and employees of the receiving party to whom 23 disclosure is reasonably necessary, and who have signed the Agreement to Be 24 Bound (Exhibit A); 25 4.2.3 Experts retained by the receiving party’s outside counsel of record to 26 whom disclosure is reasonably necessary, and who have signed the Agreement to 27 Be Bound (Exhibit A); 28 4.2.4 The Court and its personnel; 3 4830-3910-4604.1 1 4.2.5 Outside court reporters and their staff, professional jury or trial 2 consultants, and professional vendors to whom disclosure is reasonably necessary, 3 and who have signed the Agreement to Be Bound (Exhibit A); 4.2.6 During their depositions, witnesses in the action to whom disclosure is 4 5 reasonably necessary and who have signed the Agreement to Be Bound (Exhibit 6 A); and 4.2.7 The author or recipient of a document containing the material, or a 7 8 custodian or other person who otherwise possessed or knew the information. 9 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY 10 and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without Further 11 Approval. Unless permitted in writing by the designator, a receiving party may disclose 12 material designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or 13 HIGHLY CONFIDENTIAL – SOURCE CODE without further approval only to: 14 4.3.1 The receiving party’s outside counsel of record in this action and 15 employees of outside counsel of record to whom it is reasonably necessary to 16 disclose the information; 17 4.3.2 The Court and its personnel; 18 4.3.3 Outside court reporters and their staff, professional jury or trial 19 consultants, and professional vendors to whom disclosure is reasonably necessary, 20 and who have signed the Agreement to Be Bound (Exhibit A); and 4.3.4 The author or recipient of a document containing the material, or a 21 22 custodian or other person who otherwise possessed or knew the information. 23 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 24 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 25 SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in 26 writing by the designator: 27 4.4.1 A party seeking to disclose to in-house counsel any material 28 designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first 4 4830-3910-4604.1 1 make a written request to the designator providing the full name of the in-house 2 counsel, the city and state of such counsel’s residence, and such counsel’s current 3 and reasonably foreseeable future primary job duties and responsibilities in 4 sufficient detail to determine present or potential involvement in any competitive 5 decision-making. In- house counsel are not authorized to receive material 6 designated HIGHLY CONFIDENTIAL – SOURCE CODE. 7 4.4.2 A party seeking to disclose to an expert retained by outside counsel of 8 record any information or item that has been designated HIGHLY 9 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 10 SOURCE CODE must first make a written request to the designator that (1) 11 identifies the general categories of HIGHLY CONFIDENTIAL – ATTORNEY 12 EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE information that 13 the receiving party seeks permission to disclose to the expert, (2) sets forth the full 14 name of the expert and the city and state of his or her primary residence, (3) 15 attaches a copy of the expert’s current resume, (4) identifies the expert’s current 16 employer(s), (5) identifies each person or entity from whom the expert has 17 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) identifies 19 (by name and number of the case, filing date, and location of court) any litigation 20 where the expert has offered expert testimony, including by declaration, report, or 21 testimony at deposition or trial, in the past five years. If the expert believes any of 22 this information at (4) - (6) is subject to a confidentiality obligation to a third party, 23 then the expert should provide whatever information the expert believes can be 24 disclosed without violating any confidentiality agreements, and the party seeking 25 to disclose the information to the expert shall be available to meet and confer with 26 the designator regarding any such confidentiality obligations. 27 28 4.4.3 A party that makes a request and provides the information specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified in5 4830-3910-4604.1 1 house counsel or expert unless, within seven days of delivering the request, the 2 party receives a written objection from the designator providing detailed grounds 3 for the objection. 4.4.4 All challenges to objections from the designator shall proceed under 4 5 23 L.R. 37-1 through L.R. 37-4. 6 5. SOURCE CODE 7 5.1 Designation of Source Code. If production of source code is necessary, a 8 party may designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or 9 includes, confidential, proprietary, or trade secret source code. 10 5.2 Location and Supervision of Inspection. Any HIGHLY 11 CONFIDENTIAL – SOURCE CODE produced in discovery shall be made available for 12 inspection, in a format allowing it to be reasonably reviewed and searched, during normal 13 business hours or at other mutually agreeable times, at an office of the designating party’s 14 counsel or another mutually agreeable location. The source code shall be made available 15 for inspection on a secured computer in a secured room, and the inspecting party shall not 16 copy, remove, or otherwise transfer any portion of the source code onto any recordable 17 media or recordable device. The designator may visually monitor the activities of the 18 inspecting party’s representatives during any source code review, but only to ensure that 19 there is no unauthorized recording, copying, or transmission of the source code. 20 5.3 Paper Copies of Source Code Excerpts. The inspecting party may request 21 paper copies of limited portions of source code that are reasonably necessary for the 22 preparation of court filings, pleadings, expert reports, other papers, or for deposition or 23 trial. The designator shall provide all such source code in paper form, including Bates 24 numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” 25 5.4 Access Record. The inspecting party shall maintain a record of any 26 individual who has inspected any portion of the source code in electronic or paper form, 27 and shall maintain all paper copies of any printed portions of the source code in a 28 secured, locked area. The inspecting party shall not convert any of the information 6 4830-3910-4604.1 1 contained in the paper copies into any electronic format other than for the preparation of 2 a pleading, exhibit, expert report, discovery document, deposition transcript, or other 3 Court document. Any paper copies used during a deposition shall be retrieved at the end 4 of each day and must not be left with a court reporter or any other unauthorized 5 individual. 6 6. PROSECUTION BAR 7 Absent written consent from the designator, any individual who receives access to 8 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY 9 CONFIDENTIAL – SOURCE CODE information shall not be involved in the 10 prosecution of patents or patent applications concerning the field of the invention of the 11 patents-in-suit for the receiving party or its acquirer, successor, predecessor, or other 12 affiliate during the pendency of this action and for one year after its conclusion, including 13 any appeals. “Prosecution” means drafting, amending, advising on the content of, or 14 otherwise affecting the scope or content of patent claims or specifications. These 15 prohibitions shall not preclude counsel from participating in reexamination or inter partes 16 review proceedings to challenge or defend the validity of any patent, but counsel may not 17 participate in the drafting of amended claims in any such proceedings. 18 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 19 OTHER LITIGATION 20 7.1 Subpoenas and Court Orders. This Order in no way excuses non- 21 compliance with a lawful subpoena or court order. The purpose of the duties described in 22 this section is to alert the interested parties to the existence of this Order and to give the 23 designator an opportunity to protect its confidentiality interests in the court where the 24 subpoena or order issued. 25 7.2 Notification Requirement. If a party is served with a subpoena or a court 26 order issued in other litigation that compels disclosure of any information or items 27 designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL – 28 ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE, that 7 4830-3910-4604.1 1 party must: 7.2.1 Promptly notify the designator in writing. Such notification shall 2 3 include a copy of the subpoena or court order; 7.2.2 Promptly notify in writing the party who caused the subpoena or order 4 5 to issue in the other litigation that some or all of the material covered by the 6 subpoena or order is subject to this Order. Such notification shall include a copy 7 of this Order; and 7.2.3 Cooperate with all reasonable procedures sought by the designator 8 9 10 whose material may be affected. 7.3 Wait For Resolution of Protective Order. If the designator timely seeks a 11 protective order, the party served with the subpoena or court order shall not produce any 12 information designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL – 13 ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE before a 14 determination by the court where the subpoena or order issued, unless the party has 15 obtained the designator’s permission. The designator shall bear the burden and expense 16 of seeking protection of its confidential material in that court. 17 8. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 18 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 19 designated material to any person or in any circumstance not authorized under this Order, 20 it must immediately (1) notify in writing the designator of the unauthorized disclosures, 21 (2) use its best efforts to retrieve all unauthorized copies of the designated material, (3) 22 inform the person or persons to whom unauthorized disclosures were made of all the 23 terms of this Order, and (4) use reasonable efforts to have such person or persons execute 24 the Agreement to Be Bound (Exhibit A). 25 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 26 PROTECTED MATERIAL 27 When a producing party gives notice that certain inadvertently produced material is 28 subject to a claim of privilege or other protection, the obligations of the receiving parties 8 4830-3910-4604.1 1 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not 2 intended to modify whatever procedure may be established in an e-discovery order that 3 provides for production without prior privilege review pursuant to Federal Rule of 4 Evidence 502(d) and 26(e). 5 10. FILING UNDER SEAL 6 Without written permission from the designator or a Court order, a party may not 7 file in the public record in this action any designated material. A party seeking to file 8 under seal any designated material must comply with L.R. 79-5.1. Filings may be made 9 under seal only pursuant to a court order authorizing the sealing of the specific material at 10 issue. The fact that a document has been designated under this Order is insufficient to 11 justify filing under seal. Instead, parties must explain the basis for confidentiality of each 12 document sought to be filed under seal. Because a party other than the designator will 13 often be seeking to file designated material, cooperation between the parties in preparing, 14 and in reducing the number and extent of, requests for under seal filing is essential. If a 15 receiving party’s request to file designated material under seal pursuant to L.R. 79-5.1 is 16 denied by the Court, then the receiving party may file the material in the public record 17 unless (1) the designator seeks reconsideration within four days of the denial, or (2) as 18 otherwise instructed by the Court. 19 11. FINAL DISPOSITION 20 Within 60 days after the final disposition of this action, each party shall return all 21 designated material to the designator or destroy such material, including all copies, 22 abstracts, compilations, summaries, and any other format reproducing or capturing any 23 designated material. The receiving party must submit a written certification to the 24 designator by the 60- day deadline that (1) identifies (by category, where appropriate) all 25 the designated material that was returned or destroyed, and (2) affirms that the receiving 26 party has not retained any copies, abstracts, compilations, summaries, or any other format 27 reproducing or capturing any of the designated material. This provision shall not prevent 28 counsel from retaining an archival copy of all pleadings, motion papers, trial, deposition, 9 4830-3910-4604.1 1 EXHIBIT A 2 AGREEMENT TO BE BOUND I, _________________________________________ [print or type full name], of 3 4 _____________________________________________________________________ 5 [print or type full address], declare under penalty of perjury that I have read in its entirety 6 and understand the Protective Order that was issued by the United States District Court 7 for the Central District of California on _________________________________ [date] 8 in the case of ROCKWELL COLLINS, INC. v. JACOB WALLACE, Case No. 8:17-cv- 9 01369 AG (JCGx). 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 could 11 expose me to sanctions and punishment for contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this Protective Order to 13 any person or entity except in strict compliance with this Order. I further agree to submit to the jurisdiction of the United States District Court for 14 15 the Central District of California for the purpose of enforcing this Order, even if such 16 enforcement proceedings occur after termination of this action. I hereby appoint _______________________________ [print or type full name] of 17 18 __________________________________________________ [print or type full address 19 and 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 Date: 22 City and State where sworn and signed: 23 Printed name: 24 25 Signature: [printed name] [signature] 26 27 28 1 4830-3910-4604.1

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