Abbey Rooney v. Signostics, Inc. et al

Filing 15

STIPULATED PROTECTIVE ORDER 14 by Magistrate Judge John D. Early. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ABBEY ROONEY, an individual;

Case No. 8:17-cv-01865-AG-JDE
STIPULATED PROTECTIVE
ORDER

Plaintiff,
v.
SIGNOSTICS, INC., ECHONOUS, INC.,
and DOES 1 through 10, inclusive,
Defendants.

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STIPULATED PROTECTIVE ORDER

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1.

PURPOSE AND LIMITS OF THIS ORDER
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

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

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

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

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

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

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

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Order.

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2.

DESIGNATING PROTECTED MATERIAL

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2.1

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Any party or non-party who designates information or items for protection under

Over-Designation Prohibited.

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this Order as “CONFIDENTIAL” (a “designator”) 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. Mass, indiscriminate, or routinized designations are prohibited. Unjustified

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

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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

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persons not authorized to view it, would cause competitive or other recognized harm.

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Material 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

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

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that it is withdrawing the mistaken designation.

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STIPULATED PROTECTIVE ORDER

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2.2

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Designation under this Order requires the designator to affix the applicable legend

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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY”) to

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each page that contains protected material. For testimony given in deposition or other

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proceeding, the designator shall specify all protected testimony and the level of

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protection being asserted. 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 21 days from the deposition or proceeding to

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make its designation.

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Manner and Timing of Designations.

2.2.1

A party or non-party that makes original documents or

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materials 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 shall be

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treated as “HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY.” After the

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inspecting party has identified the documents it wants copied and produced, the

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producing party must designate the documents, or portions thereof, that qualify for

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protection under this Order.

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2.2.2

Parties shall give advance notice if they expect a deposition or

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

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that only authorized individuals are present at those proceedings when such

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

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

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

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material, and the title page shall be followed by a list of all pages (including line

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numbers as appropriate) that have been designated, and the level of protection

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being asserted. The designator shall inform the court reporter of these

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requirements. Any transcript that is prepared before the expiration of the 21-day

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period for designation shall be treated during that period as if it had been
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STIPULATED PROTECTIVE ORDER

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designated “HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY” unless

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otherwise agreed. After the expiration of the 21-day period, the transcript shall be

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treated only as actually designated.

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2.3

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An inadvertent failure to designate does not, standing alone, waive protection

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under this Order. Upon timely assertion or correction of a designation, all recipients must

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make reasonable efforts to ensure that the material is treated according to this Order.

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3.

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Inadvertent Failures to Designate.

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

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through L.R. 37-4.

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4.

ACCESS TO DESIGNATED MATERIAL

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4.1

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A receiving party may use designated material only for this litigation. Designated

Basic Principles.

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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.

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4.2

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Unless otherwise ordered by the Court or permitted in writing by the designator, a

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Disclosure of CONFIDENTIAL Material Without Further Approval.

receiving party may disclose any material designated CONFIDENTIAL only to:
4.2.1 The parties, the receiving party’s outside counsel of record in this

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action, and employees of outside counsel of record to whom disclosure is

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reasonably necessary;

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

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

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Bound (Exhibit A);

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4.2.3 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 the Agreement to

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Be Bound (Exhibit A);

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4.2.4 The Court and its personnel;
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STIPULATED PROTECTIVE ORDER

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

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consultants, and professional vendors to whom disclosure is reasonably necessary,

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

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

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is reasonably necessary and who have signed the Agreement to Be Bound (Exhibit

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A); and

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

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

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4.3

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Disclosure of HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY

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

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material designated HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY without

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further approval only to:

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4.3.1 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 to

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disclose the information;

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4.3.2 The Court and its personnel;

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

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consultants, and professional vendors to whom disclosure is reasonably necessary,

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

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

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

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4.4

Procedures for Approving or Objecting to Disclosures of HIGHLY

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CONFIDENTIAL - ATTORNEY EYES ONLY Material to In-House Counsel or

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Experts.

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Unless agreed to in writing by the designator:

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

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designated HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY must first
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STIPULATED PROTECTIVE ORDER

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make a written request to the designator providing the full name of the in-house

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counsel, the city and state of such counsel’s residence, and such counsel’s current

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and reasonably foreseeable future primary job duties and responsibilities in

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sufficient detail to determine present or potential involvement in any competitive

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decision-making.

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4.4.2 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 HIGHLY

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CONFIDENTIAL - ATTORNEY EYES ONLY must first make a written request

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

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CONFIDENTIAL - ATTORNEY EYES ONLY information that the receiving

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party seeks permission to disclose to the expert, (2) sets forth the full name of the

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expert and the city and state of his or her primary residence, (3) attaches a copy of

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the expert’s current resume, (4) identifies the expert’s current employer(s), (5)

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identifies each person or entity from whom the expert has received compensation

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or funding for work in his or her areas of expertise (including in connection with

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litigation) in the past five years, and (6) identifies (by name and number of the

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case, filing date, and location of court) any litigation where the expert has offered

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

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trial, in the past five years. If the expert believes any of this information at (4) - (6)

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is subject to a confidentiality obligation to a third party, then the expert should

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provide whatever information the expert believes can be disclosed without

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violating any confidentiality agreements, and the party seeking to disclose the

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

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regarding any such confidentiality obligations.

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

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

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

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STIPULATED PROTECTIVE ORDER

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party receives a written objection from the designator providing detailed grounds

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for the objection.

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4.4.4 All challenges to objections from the designator shall proceed under

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L.R. 37-1 through L.R. 37-4.
5.

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PROSECUTION BAR
Absent written consent from the designator, any individual who receives access to

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HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY information shall not be

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involved in the prosecution of patents or patent applications concerning the field of the

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invention of the patents-in-suit for the receiving party or its acquirer, successor,

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predecessor, or other affiliate during the pendency of this action and for one year after its

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conclusion, including any appeals. “Prosecution” means drafting, amending, advising on

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the content of, or otherwise affecting the scope or content of patent claims of

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specifications. These prohibitions shall not preclude counsel form participating in

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reexamination or inter partes review proceedings to challenge or defend the validity of

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any patent, but counsel may not participate in the drafting of amended claims in any such

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proceedings.

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6.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
6.1

Subpoenas and Court Orders.

This Order in no way excuses non-compliance with a lawful subpoena or court
order. The purpose of the duties described in this section is to alert the interested parties
to the existence of this Order and to give the designator an opportunity to protect its
confidentiality interests in the court where the subpoena or order issued.
6.2

Notification Requirement.

If a party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as
CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY, that
party must:
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STIPULATED PROTECTIVE ORDER

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6.2.1 Promptly notify the designator in writing. Such notification shall

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include a copy of the subpoena or court order;

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

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order 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 copy

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of this Order; and

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6.2.3 Cooperate with all reasonable procedures sought by the designator

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whose material may be affected.

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6.3

Wait For Resolution of Proactive Order.

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If the designator timely seeks a protective order, the party served with the

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

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CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY before a

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determination by the court where the subpoena or order issued, unless the party has

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obtained the designator’s permission. The designator shall bear the burden and expense

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of seeking protection of its confidential material in that court.

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7.

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 material, (3)

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

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

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the Agreement to Be Bound (Exhibit A).

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8.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a producing party gives notice that certain inadvertently produced material is

subject to a claim of privilege or other protection, the obligations of the receiving parties
are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not
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STIPULATED PROTECTIVE ORDER

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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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9.

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FILING UNDER SEAL
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

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

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

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

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justify 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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10.

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FINAL DISPOSITION
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 any

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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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STIPULATED PROTECTIVE ORDER

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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 STIPULATED AND ORDERED.

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DATED: February 22, 2018

LOVELESS LAW FIRM, LLP

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By: /s/ Andrea Loveless
Andrea Loveless
Attorneys for Plaintiff
ABBEY ROONEY

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DATED: February 22, 2018

SEYFARTH SHAW LLP

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By: /s/ Meagan Sue O’Dell
Mark P. Grajski
Meagan Sue O’Dell
Attorneys for Defendants
SIGNOSTICS INC. and ECHONOUS,
INC.

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ECF CERTIFICATION
The filing attorney attests that she has obtained concurrence regarding the filing of this
document from the signatories to this document.

DATED: February 22, 2018

SEYFARTH SHAW LLP

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By: /s/ Meagan Sue O’Dell
Mark P. Grajski
Meagan Sue O’Dell
Attorneys for Defendants
SIGNOSTICS INC. and ECHONOUS,
INC.

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DATED: February 23, 2018

JOHN D. EARLY
United States Magistrate Judge
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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, ________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety

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and understand the Protective Order that was issued by the United States District Court

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for the Central District of California on February 23, 2018 in the case of Abbey Rooney v.

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Signostics Inc., et al., Case No. 8:17-cv-01865-AG-JDE. I agree to comply with and to

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be bound by all the terms of this Protective Order, and I understand and acknowledge that

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

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

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

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this Order.

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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.

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

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_________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings

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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]
Signature: _________________________
[signature]

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STIPULATED PROTECTIVE ORDER