Macedonia Distributing Inc. v. S L Distribution Company, LLC

Filing 42

ORDER RE STIPULATED PROTECTIVE ORDER 41 by Magistrate Judge Karen E. Scott. (es)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MACEDONIA DISTRIBUTING INC.
on behalf of itself and all others
similarly situated,
Plaintiff,

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v.

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Case No.

8:17-cv-01692-JVS-KES

ORDER RE
STIPULATED PROTECTIVE
ORDER

S-L DISTRIBUTION COMPANY, LLC,
Defendant.

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production

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of confidential, proprietary, or private information for which special protection from

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, the parties hereby stipulate to and petition the court

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to enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to discovery

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and that the protection it affords from public disclosure and use extends only to the

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limited information or items that are entitled to confidential treatment under the

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applicable legal principles. The parties further acknowledge, as set forth in Section

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12.3, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

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that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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2.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, sales and pricing lists, and other

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valuable development, commercial, financial, technical and/or proprietary information

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for which special protection from public disclosure and from use for any purpose

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other than prosecution of this action is warranted. Such confidential and proprietary

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materials and information consists of, among other things, confidential company

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documents and records; agreements, contracts, correspondence and notices regarding

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business relationships; policies, rules, and procedures; financial or tax information;

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information implicating privacy rights of third parties; competitively sensitive

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information; sales and pricing lists and information; and information otherwise

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generally unavailable to the public.

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Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation for and

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in the conduct of trial, to address their handling at the end of the litigation, and serve

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the ends of justice, a protective order for such information is justified in this matter. It

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is the intent of the parties that information will not be designed as a confidential for

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tactical reasons and that nothing be so designated without a good faith belief that it

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has been maintained in a confidential, non-public manner, and there is good cause

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why it should not be part of the public record of this case.

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3.

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DEFINITIONS
3.1

Action: This matter, Macedonia Distributing, Inc. v. S-L Distribution

Company, LLC, Case No. 8:17-01692-JVS-KES.
3.2

Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.
3.3

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for protection

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under Federal Rule of Civil Procedure 26(c) and as specified above in the Good Cause

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Statement.

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3.4

Counsel (without qualifier):

Outside Counsel of Record and House

Counsel (as well as their support staff).
3.5

Designating Party: a Party or Non-Party that designates information or
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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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3.6

Disclosure or Discovery Material: all items or information, regardless of

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the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures or responses to discovery in this matter.

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3.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this action.

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3.8

House Counsel: attorneys who are employees of a Party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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3.9

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

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3.10 Outside Counsel of Record: attorneys who are not employees of a Party

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to this Action but are retained to represent or advise a Party to this Action and have

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appeared in this Action on behalf of that Party or are affiliated with a law firm which

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has appeared on behalf of that Party.

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3.11 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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3.12 Producing Party:

a Party or Non-Party that produces Disclosure or

Discovery Material in this action.

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3.13 Professional Vendors: persons or entities that provide litigation support

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services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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3.14 Protected Material:

any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL.”
3.15 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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4.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or extracted

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from Protected Material; (2) all copies, excerpts, summaries, or compilations of

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Protected Material; and (3) any testimony, conversations, or presentations by Parties

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or their Counsel that might reveal Protected Material. However, the protections

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conferred by this Stipulation and Order do not cover the following information: (a)

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any information that is in the public domain at the time of disclosure to a Receiving

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Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part

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of the public record through trial or otherwise; and (b) any information known to the

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Receiving Party prior to the disclosure or obtained by the Receiving Party after the

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disclosure from a source who obtained the information lawfully and under no

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obligation of confidentiality to the Designating Party.
Any use of Protected Material at trial shall be governed by a separate agreement

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or order.

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5.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

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without prejudice; and (2) final judgment herein after the completion and exhaustion

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of all appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to

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applicable law.
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6.

DESIGNATING PROTECTED MATERIAL
6.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify – so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the Designating

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Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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6.2

Manner and Timing of Designations. Except as otherwise provided in

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

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page that contains protected material. If only a portion or portions of the material on a

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page qualifies for protection, the Producing Party also must clearly identify the
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protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

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it wants copied and produced, the Producing Party must determine which documents,

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or portions thereof, qualify for protection under this Order. Then, before producing the

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specified documents, the Producing Party must affix the “CONFIDENTIAL” legend

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to each page that contains Protected Material. If only a portion or portions of the

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material on a page qualifies for protection, the Producing Party also must clearly

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identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL.” If only a portion or portions of the information or item

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warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portion(s).

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6.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material.

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Upon timely correction of a designation, the Receiving Party must make reasonable

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.
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7.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

Timing of Challenges.

Any Party or Non-Party may challenge a

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designation of confidentiality at any time that is consistent with the Court’s

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Scheduling Order.

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7.2

Meet and Confer.

The Challenging Party shall initiate the dispute

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resolution process by providing written notice of each designation it is challenging

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and describing the basis for each challenge. To avoid ambiguity as to whether a

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challenge has been made, the written notice must recite that the challenge to

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confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The parties shall attempt to resolve each challenge in good faith and

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must begin the process by conferring directly (in voice to voice dialogue; other forms

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of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the

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confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party

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is unwilling to participate in the meet and confer process in a timely manner.

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7.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party shall file and serve a Motion to Strike the

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Confidentiality designation within 21 days of the initial notice of challenge or within

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14 days of the parties agreeing that the meet and confer process will not resolve their

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dispute, whichever is earlier. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose
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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. During the pendency of any Motion, all

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parties shall continue to afford the material in question the level of protection to which

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it is entitled under the Producing Party’s designation until the court rules on the

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challenge.

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8.

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ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this case

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the litigation has been terminated, a Receiving Party

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must comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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8.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A;

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(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this Action and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff,

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(f) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

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

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(h) during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

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not be permitted to keep any confidential information unless they sign the

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“Acknowledgement and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the Designating Party or ordered by the court.

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deposition testimony or exhibits to depositions that reveal Protected Material may be

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separately bound by the court reporter and may not be disclosed to anyone except as

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permitted under this Stipulated Protective Order; and
(i)

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Pages of transcripted

any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or
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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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10.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a

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Non-Party in this action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this litigation, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

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Party.

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(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving

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Party may produce the Non-Party’s confidential information responsive to the

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discovery request. If the Non-Party timely seeks a protective order, the Receiving

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Party shall not produce any information in its possession or control that is subject to

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the confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and expense

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of seeking protection in this court of its Protected Material.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the stipulated protective order submitted to

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the court.

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13.

13.1 Right to Further Relief. Nothing in this Order abridges the right of any

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MISCELLANEOUS

person to seek its modification by the court in the future.

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13.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to

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disclosing or producing any information or item on any ground not addressed in this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any

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ground to use in evidence of any of the material covered by this Protective Order.

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13.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may

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

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specific Protected Material at issue. If a Party’s request to file Protected Material

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under seal is denied by the court, then the Receiving Party may file the information in

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the public record unless otherwise instructed by the court.

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14.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph

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5, each Receiving Party must return all Protected Material to the Producing Party or

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destroy such material. As used in this subdivision, “all Protected Material” includes

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

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capturing any of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if not the same person or entity, to the Designating Party) by the 60 day

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deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and (2) affirms that the Receiving Party has not
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retained any copies, abstracts, compilations, summaries or any other format

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reproducing or capturing any of the Protected Material. Notwithstanding this

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provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this

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Protective Order as set forth in Section 5 (DURATION).

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15.

Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: March 14, 2018

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_____________________________________
Hon. Karen E. Scott
United States Magistrate Judge

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Dated: March 8, 2018

By:

/s/ Annick M. Persinger
Annick M. Persinger

TYCKO & ZAVAREEI LLP
ANNICK M. PERSINGER (SBN 272996)
[e-mail]
483 Ninth Street, Suite 200
Oakland, CA 94607
Telephone [phone]
Facsimile [phone]
HASSAN A. ZAVAREEI (SBN 181547)
[e-mail]
1828 L Street, NW, Suite 1000
Washington, DC 20036
Telephone [phone]
Facsimile [phone]
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SPANGENBERG SHIBLEY & LIBER
LLP
STUART E. SCOTT (OH 0064834) pro hac
vice forthcoming
[e-mail]
1001 Lakeside Avenue East, Suite 1700
Cleveland, OH 44114
Telephone [phone]
Facsimile [phone]

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Attorneys for Plaintiff

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Dated: March 8, 2018

By:

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/s/ Joel L. Lennen
Joel L. Lennen

ECKERT
SEAMANS
CHERIN
MELLOTT, LLC
JOEL L. LENNEN (pro hac vice)
[e-mail]
MATTHEW J. WHIPPLE (pro hac vice)
[e-mail]
600 Grant Street, 44th Fl.
Pittsburgh, PA 15219
Telephone: [phone]
Facsimile: [phone]

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WINSTON & STRAWN LLP
EMILIE C. WOODHEAD (SBN: 240464)
[e-mail]
AUDREY SHEN CHUI (SBN: 254510)
[e-mail]
333 S. Grand Avenue
Los Angeles, CA 90071-1543
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant

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&

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EXHIBIT A

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ACKNOWLEDGMENT AND 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

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

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

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[date] in the case of Macedonia Distributing, Inc. v. S-L Distribution Company, LLC,

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Case No. 8:17-01692-JVS-KES. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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

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in strict compliance with the provisions of this Order.

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

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.
I hereby appoint

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[print or type full

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name] of

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 Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:
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