G.E.T. Enterprises, LLC v. Richard Vander Kaay and Associates, Inc.

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

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Mark Holscher (SBN 139582)
[e-mail]
Sierra Elizabeth (SBN 268133)
[e-mail]
Kirkland & Ellis LLP
333 South Hope Street, Suite 2900
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff G.E.T. Enterprises, LLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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G.E.T. ENTERPRISES, LLC., a
Delaware Limited Liability Company
Plaintiff,
v.
RICHARD VANDER KAAY &
ASSOCIATES, INC., a California
Corporation

Case No. 8:18-CV-0045-CJC (DFMx)
STIPULATED PROTECTIVE
ORDER
The Hon. Cormac J. Carney
Action Filed:
Trial Date:

Defendant.
RICHARD VANDER KAAY &
ASSOCIATES, INC., a California
Corporation,
Counter-Claimant.
v.
G.E.T. ENTERPRISES, LLC, a Delaware
Limited Liability Company,
Counter-Defendant,

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STIPULATED PROTECTIVE ORDER

January 12, 2018
None Set

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Plaintiffs and Defendant having consented thereto, and for good cause shown,

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the documents and

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other information, including the substance and content thereof, designated by any

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party as confidential and proprietary, and produced by that party in response to any

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formal or informal request for discovery in the above-captioned matter, shall be

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subject to the terms of this Protective Order (“Protective Order” or “Order”), as set

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forth below:

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The purpose of this Order is to expedite the flow of discovery material,
facilitate the prompt resolution of disputes over confidentiality and privilege, and

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protect material to be kept confidential or privileged, pursuant to the Court’s inherent

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authority, its authority under Federal Rule of Civil Procedure 26(c) and Federal Rule

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of Evidence 502(d), and the judicial opinions interpreting such Rules.

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I.

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1. Information. “Information” includes the contents of documents and other data, any

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data and information associated with documents (whether physical or in electronic

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format), oral and written testimony, answers to interrogatories, admissions, and

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data and information derived from objects other than documents, produced or

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disclosed in these proceedings by any party to the above-captioned litigation or by

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any third party (the “Producing Party”) to any other party or parties, subject to the

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provisions in Paragraphs 5 and 6 of this Order (the “Receiving Party”).

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CONFIDENTIALITY.

2. Confidentiality Designations. This Order covers Information that the Producing

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Party designates “Confidential” or “Highly Confidential.” Information may be

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designated as Confidential when (i) the Producing Party reasonably believes that

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the Information constitutes, reflects, discloses or contains Information subject to

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protection under Federal Rule of Civil Procedure 26(c) or other confidential, non-

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public information, or (ii) the Producing Party reasonably believes that the

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documents or information includes material protected by federal, state, or foreign

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data protection laws or other privacy obligations, including (but not limited to)
STIPULATED PROTECTIVE ORDER

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consumer (other than Plaintiffs) and third-party names and other identifying or

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sensitive personal information, such as Social Security Numbers; driver’s license

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or other identification numbers; personal financial information such as tax

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information, bank account numbers, and credit card numbers; or the personal email

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addresses or other contact information of Plaintiffs and Defendants, any subsidiary,

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parent or affiliated corporation, present or former officer, director, agent,

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employee, successor, predecessor, attorney, accountant, representative, or other

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person acting or purporting to act on their behalves (“Personal Information”).

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Information may be designated as Highly Confidential when: (i) the Producing

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Party reasonably believes that the documents or information contain competitively

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sensitive information regarding future product designs or strategies, commercial or

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financial information, or other sensitive information, the disclosure of which to

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third party competitors may result in commercial harm; or (ii) the Producing Party

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reasonably believes that the documents or information includes Personal

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Information. Subject to provisions of Paragraph 3(b), the parties shall make

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Confidential and Highly Confidential designations in good faith to ensure that only

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those documents that merit Confidential or Highly Confidential treatments are so

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designated. By entering into this stipulation, the parties do not waive their rights to

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demand additional confidentiality protections for certain highly confidential,

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commercially sensitive information.

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3. Procedure for Confidentiality Designations.
(i)

Designation. To designate Information as Confidential or Highly

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Confidential, a Producing Party must mark it or identify it on the record

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as such. Either designation may be withdrawn by the Producing Party.

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(ii)

Bulk Designation. To expedite production of potentially voluminous

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materials a Producing Party may, but is not required to, produce materials

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without a detailed confidentiality review, subject to the “clawback”

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procedures in Paragraphs 3(f) and 9 of this Order or as otherwise agreed
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to. In so doing, the Producing Party may designate those collections of

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documents that by their nature contain “Confidential” or “Highly

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Confidential” Information with the appropriate designation

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notwithstanding that some of the documents within the collection may

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not qualify for such designation. The materials that may be so designated

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shall be limited to the types or categories of documents that the

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Producing Party reasonably believes may contain Confidential or Highly

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Confidential Information, as defined in Paragraph 2 of this Order.

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Notwithstanding the foregoing, a Receiving Party may at any time

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challenge the designation of one or more particular documents as

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Confidential or Highly Confidential on the ground that it does not or they

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do not qualify for such protection. If the Producing Party agrees, it must

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promptly notify all Receiving Parties that it is withdrawing or changing

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the designation.

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(iii)

Marking. All or any part of a document, tangible object, discovery

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response, or pleading disclosed, produced, or filed by a Producing Party

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may be designated Confidential or Highly Confidential by marking the

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appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL”) on the face of the document and each page so

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designated. With respect to tangible items or electronically stored

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Information produced in native format, the appropriate legend shall be

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marked on the face of the tangible item or media containing

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electronically stored Information, if practicable, or by written notice to

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the Receiving Party at the time of disclosure, production or filing that

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such tangible item or media is Confidential or Highly Confidential or

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contains such Information.

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(iv)

Redaction. Any Producing Party may redact from the documents and
things it produces any matter that the Producing Party claims is subject to
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attorney-client privilege, work-product protection, a legal prohibition

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against disclosure, or any other privilege or immunity. The redaction

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shall be visible, and the Producing Party shall mark each thing where

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matter has been redacted with a legend stating “PRIVILEGED,” or a

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comparable notice. Where a document consists of more than one page,

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each page on which Information has been redacted shall be so marked.

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The Producing Party shall preserve an unredacted version of each such

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document. The process for challenging the designation of redactions shall

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be the same as the process for challenging the designation of Confidential

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Material and Highly Confidential Material set forth in Paragraph 4.
(v)

Timing. Subject to the provisions of Paragraphs 3(f) and 9, documents

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and other objects must be designated as Confidential or Highly

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Confidential before disclosure. Any party or non-party may designate

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depositions and other testimony as Confidential or Highly Confidential

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by (i) indicating on the record at the time the testimony is given that the

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entire testimony or portions thereof shall be designated as Confidential or

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Highly Confidential or (ii) by captioned, written notice to the reporter

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and all counsel of record, given within thirty (30) days after receipt of the

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final transcript, in which case all counsel receiving such notice shall be

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responsible for marking the copies of the designated transcript or portion

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thereof in their possession or control as directed by the Producing Party.

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Deposition testimony shall be treated as Confidential pending the thirty

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(30) day deadline.

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(vi)

Errors. Disclosure of Confidential or Highly Confidential Information

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does not waive the confidential status of such Information. In the event

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that Confidential or Highly Confidential Information is disclosed without

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a marking or designation of it as such, the Producing Party may thereafter

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assert a claim or designation of confidentiality, and promptly provide
-4STIPULATED PROTECTIVE ORDER

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replacement media. Thereafter, the Receiving Party must immediately

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return the original Confidential or Highly Confidential Information and

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all copies of the same to the Producing Party and make no use of such

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Information.

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4. Challenges to Confidentiality Designations. Any party may object to the propriety

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of the designation of specific material as Confidential or Highly Confidential by

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serving a written objection upon the Producing Party’s counsel that sets forth, at a

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minimum, specific identification of the designated material objected to as well as

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the reason(s) for the objection. The Producing Party or its counsel shall thereafter,

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within fourteen (14) calendar days, respond to such objection in writing by either:

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(i) agreeing to remove the designation; or (ii) stating the reasons for such

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designation. Counsel may agree to a reasonable extension of the fourteen-day

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period, if necessary. If the objecting party and the Producing Party are

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subsequently unable to agree upon the terms and conditions of disclosure for the

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material(s) in issue, the objecting party may move the Court for an order

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withdrawing the designation as to the specific designation on which the Parties

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could not agree. On such a motion, the Producing Party shall have the burden of

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proving that “good cause” exists for the designation at issue and that the material is

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entitled to protection as Confidential or Highly Confidential Information under

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applicable law. In the event a motion is filed by the objecting party, the

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Information at issue shall continue to be treated in the manner as designated by the

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Producing Party until the Court orders otherwise. A Receiving Party does not

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waive its right to challenge a Confidential or Highly Confidential designation by

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electing not to raise a challenge promptly after the original designation is disclosed

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and may challenge a designation at such time as the Receiving Party deems

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appropriate.

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5. Access to Confidential Information. The Receiving Party may share Confidential

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Information with only the following persons and entities related to the above-5STIPULATED PROTECTIVE ORDER

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captioned case:

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(i)

The Court and its staff;

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(ii)

Parties to the action;

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(iii)

Parties’ counsel;

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(iv)

Court reporters (including audio and video), interpreters, translators,

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copy services, graphic support services, document imaging services, and

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database or coding services retained by counsel;

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(v)

Special masters;

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(vi)

Mediators;

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(vii) The direct staff of those identified above;

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(viii) Deponents and trial witnesses during a deposition or trial who have a

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reasonable need to see the Confidential Information in order to provide

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testimony, provided such witness executes a certification in the form

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attached hereto as Appendix A;

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(ix)

Any expert or consultant, and his, her or its staff, hired by a party for

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litigation purposes who agrees to be bound by this Order and signs the

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certificate attached hereto as Appendix A; and

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(x)

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Any other person to whom the Producing Party, in writing, authorizes
disclosure.

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6. Access to Highly Confidential Information. The Receiving Party may share Highly

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Confidential Information with only the following persons and entities related to the

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above-captioned case:

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(i)

The Court and its staff;

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(ii)

Court reporters (including audio and video), interpreters, translators,

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copy services, graphic support services, document imaging services, and

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database or coding services retained by counsel;

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(iii)

Mediators and their staff, provided that such persons execute a
certification attached hereto as Appendix A;
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(iv)

A witness during a hearing, a deposition, or preparation for a deposition

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who is a current employee of the Party that produced the applicable

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document(s) or who appears, based upon the document itself or

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testimony in a deposition, to have specific knowledge of the contents of

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the documents designated “HIGHLY CONFIDENTIAL,” provided such

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witness executes a certification in the form attached hereto as Appendix

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A;

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(v)

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litigation purposes, provided such expert, consultant, or agent executes a

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certification in the form attached hereto as Appendix A; and
(vi)

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Outside experts, consultants, or other agents retained by a party for

Any other person to whom the Producing Party, in writing, authorizes
disclosure.

7. Use of Confidential and Highly Confidential Information.
(i)

Restricted to This Proceeding. Confidential Information and Highly

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Confidential Information must be used only in this proceeding and any

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appeal therefrom and cannot be used for any other purpose including, but

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not limited to, any other litigation, arbitration, or claim.

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(ii)

Acknowledgement. Subject to the restrictions contained in Paragraphs 5

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and 6, the persons identified in Paragraphs 5 and 6 may receive or review

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Confidential or Highly Confidential Information. All persons specifically

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designated in Paragraphs 5 and 6 must execute the certificate attached

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hereto as Appendix A or affirm on the record that he or she will not

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disclose Confidential or Highly Confidential Information revealed during

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a deposition and will keep the transcript confidential.

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(iii)

Filings. All parties shall make reasonable efforts to avoid requesting the

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filing of Confidential or Highly Confidential Information under seal by,

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for example, redacting or otherwise excluding from a submission to the

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Court any such Information not directly pertinent to the submission. Any
-7STIPULATED PROTECTIVE ORDER

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pleadings, motions, briefs, declarations, stipulations, exhibits or other

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written submissions to the Court in this litigation which contain, reflect,

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incorporate or refer material designated as “Confidential” or “Highly

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Confidential” shall be submitted for filing and maintenance under seal in

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accordance with the provisions of Local Rule 79-5, unless the Parties

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agree that such materials need not be sealed. The party seeking to file the

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unredacted “Confidential” or “Highly Confidential” material shall submit

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an application, along with a proposed order, seeking a Court order

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permitting the designated Discovery Material to be filed under seal in

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accordance with the foregoing provisions.
(iv)

Confidential or Highly Confidential Information during a pre-trial

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hearing, such Receiving Party shall provide written notice no less than

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five days prior to the hearing, to the Producing Party and to the Court,

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except that shorter notice may be provided if the Receiving Party could

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not reasonably anticipate the need to use the document at the hearing five

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days in advance, in which event notice shall be given immediately upon

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identification of that need. The use of such Confidential or Highly

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Confidential Information during the pre-trial hearing shall be determined

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Hearings. In the event that a Receiving Party intends to utilize

by agreement of the parties or by order of the Court.
(v)

Trial. The use of Confidential or Highly Confidential Information during
the trial shall be determined by order of the Court.

(vi)

Subpoena by Other Courts or Agencies. If another court or an
administrative agency subpoenas or otherwise orders production of
Confidential or Highly Confidential Information that any Party or other
person has obtained under the terms of this Order, the Party or other
person to whom the subpoena or other process is directed must notify the
Producing Party in writing within five (5) days of all of the following: (a)
-8STIPULATED PROTECTIVE ORDER

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the discovery materials that are requested for production in the subpoena;

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(b) the date by which compliance with the subpoena is requested; (c) the

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location at which compliance with the subpoena is requested; (d) the

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identity of the party serving the subpoena; and (e) the case name,

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jurisdiction and index, docket, complaint, charge, civil action or other

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identification number or other designation identifying the litigation,

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administrative proceeding or other proceeding in which the subpoena or

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other process has been issued. Confidential or Highly Confidential

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Information shall not be produced prior to the receipt of written notice by

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the Producing Party and after a reasonable opportunity to object has been

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offered. Further, the party or person receiving the subpoena or other

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process will cooperate with the Producing Party in any proceeding related

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thereto. The Producing Party will bear the burden and all costs of

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opposing the subpoena on grounds of confidentiality.

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8. Return of Discovery Materials. Within ninety days of the termination of any party

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from all proceedings in this action, that party, its employees, attorneys, consultants

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and experts must destroy or return (at the election of the Receiving Party) all

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originals and/or copies of documents with Confidential Information or Highly

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Confidential Information, provided however, that the obligation to destroy or

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return such documents that is imposed on counsel, consultants and experts

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representing multiple parties shall not occur until the last of their represented

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parties has been terminated from this action. At the written request of the

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Producing Party, any person or entity having custody or control of recordings,

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notes, memoranda, summaries or other written materials, and all copies thereof,

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related to or containing discovery materials produced by the Producing Party (the

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“Discovery Materials”) shall deliver to the Producing Party an affidavit certifying

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that reasonable efforts have been made to assure that all Discovery Materials have

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been destroyed or delivered to the Producing Party in accordance with the terms of
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this Protective Order. Notwithstanding the foregoing, counsel for each party may

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retain court-filed documents and attorney work product materials that refer to or

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incorporate Confidential Information, and will continue to be bound by this Order

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with respect to all such retained information. A Receiving Party is permitted to

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retain a list of the documents by Bates Number that are produced by a Producing

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Party under this Protective Order.

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II.

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9. No Waiver by Disclosure.

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PRIVILEGES.

(i)

This Order is entered, inter alia, pursuant to Rule 502(d) of the Federal

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Rules of Evidence. If a Producing Party inadvertently discloses

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information in connection with the pending litigation that the Producing

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Party thereafter claims to be privileged or protected by the attorney-client

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privilege or attorney work product protection (“Disclosed Protected

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Information”), the disclosure of the Disclosed Protected Information shall

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not constitute or be deemed a waiver or forfeiture of any claim of

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privilege or work product protection that the Producing Party would

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otherwise be entitled to assert with respect to the Disclosed Protected

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Information and its subject matter in this proceeding or in any other

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federal or state proceeding.

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(ii)

A Producing Party may assert attorney-client privilege or work product

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protection with respect to Disclosed Protected Information by notifying

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the Receiving Party in writing. The Receiving Party must return or

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destroy all copies of the Disclosed Protected Information, and provide a

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certification of counsel that all of the Disclosed Protected Information

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has been returned or destroyed within three (3) days of receipt of the

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Producing Party’s written notice. Within five (5) business days of receipt

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of the notification that the Disclosed Protected Information has been

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returned or destroyed, the Producing Party must produce a privilege log
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with respect to the Disclosed Protected Information.
(iii)

If the Receiving Party contests the claim of attorney-client privilege or

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work product protection, it may challenge the Producing Party’s claim(s)

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of privilege or work-product by making a motion to the Court.

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(iv)

Disclosed Protected Information that is sought to be reclaimed by the

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parties to this case pursuant to this Order shall not be used as grounds by

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any third party to argue that any waiver of privilege or protection has

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occurred by virtue of any production in this case.

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(v)

The Producing Party retains the burden of establishing the privileged or

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protected nature of the Disclosed Protected Information. Nothing in this

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paragraph shall limit the right of any party to petition the Court for an in

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camera review of the Disclosed Protected Information.

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10. Receiving Party’s Obligation. Nothing in this Order shall relieve counsel for any

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Receiving Party of any existing duty or obligation, whether established by case

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law, rule of court, regulation or other source, to return, and not to review, any

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privileged or work product materials without being requested by the Producing

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Party to do so. Rather, in the event a Receiving Party becomes aware that it is in

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possession of what appears to be privileged documents or materials, then counsel

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for the Receiving Party shall immediately: (i) cease any further review or use of

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that document or material and (ii) notify the Producing Party of the apparent

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production of Disclosed Protected Information, requesting whether the documents

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or materials are Disclosed Protected Information. In the event the Producing Party

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confirms the documents or material are Disclosed Protected Information, the

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Receiving Party shall (i) promptly return or destroy all copies of the Disclosed

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Protected Information in its possession and (ii) take reasonable steps to retrieve all

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copies of the Disclosed Protected Information distributed to other counsel or non-

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parties.

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III. MISCELLANEOUS.

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11. Violations of the Protective Order by a Receiving Party. In the event of disclosure

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of Discovery Material designated CONFIDENTIAL or HIGHLY

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CONFIDENTIAL to any person not authorized to such access under this Protective

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Order, the party responsible for having made such disclosure, and each party with

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knowledge thereof, shall immediately inform counsel for the party whose

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Discovery Material has been disclosed of all known relevant information

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concerning the nature and circumstances of the disclosure. The party responsible

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for improperly disclosing such Discovery Material shall also promptly take all

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reasonable measures to retrieve the improperly disclosed Discovery Material and

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to ensure that no further or greater unauthorized disclosure and/or use thereof is

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made. In the event that any person or party otherwise violates the terms of this

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Protective Order, the aggrieved Producing Party should apply to the Court to

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obtain relief against any such person or party violating or threatening to violate any

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of the terms of this Protective Order. In the event that the aggrieved Producing

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Party seeks injunctive relief, it must direct the petition for such relief to this Court.

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The parties and any other person subject to the terms of this Protective Order agree

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that this Court shall retain jurisdiction over it and them for the purpose of

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enforcing this Protective Order.

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12. Violations of the Protective Order by Disclosure of Personal Information. In the

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event that any person or party violates the terms of this Protective Order by

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disclosing Confidential Personal Information or Highly Confidential Information

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relating to an individual third party, as defined in Paragraph 2 of this Order, or in

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the event that any person or party breaches the terms of the Protective Order in a

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manner that requires disclosure to a third party under pertinent privacy laws or

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otherwise, it shall be the responsibility of the breaching party to inform the

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Producing Party of such breach and to contact that third party and to comply with

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any laws or regulations involving breaches of Personal Information.
-12STIPULATED PROTECTIVE ORDER

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13. Protective Order Remains In Force. This Protective Order shall remain in force

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and effect until modified, superseded, or terminated by order of the Court made

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upon reasonable written notice. Unless otherwise ordered, or agreed upon by the

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parties, this Protective Order shall survive the termination of this action. The Court

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retains jurisdiction even after termination of this action to enforce this Protective

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Order and to make such amendments, modifications, deletions and additions to this

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Protective Order as the Court may from time to time deem appropriate.

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SO ORDERED, this 14th day of March 2018.

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__________________________________________
THE HONORABLE DOUGLAS F.
MCCORMICK FOR THE CENTRAL
DISTRICT OF CALIFORNIA

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-13STIPULATED PROTECTIVE ORDER

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DATED: March 12, 2018

Respectfully submitted,
KIRKLAND & ELLIS LLP

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By: /s/ Mark Holscher

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Mark Holscher (SBN 139582)
[e-mail]
Sierra Elizabeth (SBN 268133)
[e-mail]
333 South Hope Street
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: [phone]

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DATED: March 12, 2018

THEODORA ORINGHER PC

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By:

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/s/ Antony Buchignani
Antony Buchignani, Esq. (SBN 186528)
[e-mail]
Jon-Jamison Hill, Esq. (SBN 203959)
[e-mail]
Katherine J. Flores, Esq. (SBN 311224)
[e-mail]
1840 Century Park East, Suite 500
Los Angeles, California 90067-2120
Telephone: [phone]
Facsimile: [phone]

Local Rule 5-4.3.4 Attestation
I attest that Defendant’s counsel, Antony Buchignani, concurs in this filing’s
content and has authorized the filing.

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DATED: March 12, 2018

By: /s/ Mark Holscher
Mark Holscher (SBN 139582)

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-14STIPULATED PROTECTIVE ORDER

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
Case No. 8:18-CV-0045-CJC (DFMx)

G.E.T. ENTERPRISES, LLC., a
Delaware Limited Liability Company

APPENDIX A TO JOINT
PROTECTIVE ORDER

Plaintiff,

The Hon. Cormac J. Carney

v.

Action Filed:
Trial Date:

RICHARD VANDER KAAY &
ASSOCIATES, INC., a California
Corporation

January 12, 2018
None Set

Defendant.
RICHARD VANDER KAAY &
ASSOCIATES, INC., a California
Corporation,
Counter-Claimant.
v.

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G.E.T. ENTERPRISES, LLC, a Delaware
Limited Liability Company,
Counter-Defendant,

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I hereby certify that I have read the Joint Stipulated Protective Order (the

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“Order”) entered in the above-captioned action and that I understand the terms

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thereof. I agree to be bound by the Order. If I receive documents or information

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designated as Confidential or Highly Confidential, as those terms are defined in the

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Order, I understand that such information is provided to me pursuant to the terms and

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restrictions of the Order. I agree to hold in confidence and not further disclose or use
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for any purpose, other than as permitted by the Order, any information disclosed to me

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pursuant to the terms of the Order. I further agree to submit to the jurisdiction of this

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Court for purposes of enforcing the Order and agree to accept service of process in

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connection with this action or any proceedings related to enforcement of the Order by

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certified letter, return receipt requested, at my principal residence, in lieu of personal

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service or other methods of service.

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I understand that these certifications are strictly confidential, that counsel for

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each party are maintaining the certifications without giving copies to the other side,

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and that the parties expressly agreed and the Court ordered that except in the event of

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a violation of this Order, the parties will make no attempt to seek copies of the

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certifications or to determine the identities of persons signing them. I further

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understand that if the Court should find that any disclosure is necessary to investigate

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a violation of this Order, the disclosure will be limited to outside counsel only, and

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outside counsel shall not disclose any information to their clients that could tend to

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identify any certification signatory unless and until there is specific evidence that a

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particular signatory may have violated the Order, in which case limited disclosure

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may be made with respect to that signatory.

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(signature)

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(print name)
Sworn to and subscribed before me this

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, 201_.

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day of

Notary Public

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-16STIPULATED PROTECTIVE ORDER