Basware, Inc. v. Hoag Memorial Hospital Presbyterian, Inc.

Filing 31

ORDER RE STIPULATED PROTECTIVE ORDER 29 by Magistrate Judge Karen E. Scott. [See document for details.] (es)

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ABEL LAW OFFICES, PC

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Joshua H. Abel (SBN 244592)
Evan M. Rothman (SBN 271313)
ABEL LAW OFFICES, PC
2601 Main Street, Suite 1200
Irvine, CA 92614
Phone: [phone]
Fax:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
BASWARE, INC., a Delaware Corporation
Tami S. Smason (SBN 120213)
Kathryn A. Shoemaker (SBN 305111)
Alyssa L. Titche (SBN 313296)
FOLEY & LARDNER LLP
555 South Flower Street, Suite 3300
Los Angeles, CA 90071
Phone: [phone]
Fax:
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN (erroneously sued as
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, INC.)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BASWARE, INC., a Delaware corporation,

Hon. Karen E. Scott

Plaintiff,
vs.
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, INC., a California
corporation, and DOES 1 through 10,
inclusive,
Defendants.

CASE NO.: 8:20-cv-00403-KES

ORDER RE STIPULATED
PROTECTIVE ORDER
Action Filed: February 27, 2020

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STIPULATED PROTECTIVE ORDER

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A. PURPOSES AND LIMITATIONS

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection

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it affords from public disclosure and use extends only to the limited information or items

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that are entitled to confidential treatment under the applicable legal principles. The

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parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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proprietary, or private information for which special protection from public disclosure

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Discovery in this action is likely to involve production of confidential,

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Protective Order does not entitle them to file confidential information under seal; Civil

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Local Rule 79-5 sets forth the procedures that must be followed and the standards that

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will be applied when a party seeks permission from the court to file material under seal.

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B. GOOD CAUSE STATEMENT

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

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

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information for which special protection from public disclosure and from use for

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

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proprietary materials and information consist of, among other things, confidential

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business or financial

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practices, or other confidential research, development, or commercial information

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(including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or otherwise

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protected from disclosure under state or federal statutes, court rules, case decisions,

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or common law. This action may also involve protected health information (“PHI”)

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under the Health Insurance Portability and Accountability Act (“HIPAA”).

information, information regarding confidential business

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STIPULATED PROTECTIVE ORDER

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

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disputes over confidentiality of discovery materials, to adequately protect information

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the parties are entitled to keep confidential, to ensure that the parties are permitted

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reasonable necessary uses of such material in preparation for and in the conduct of trial,

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to address their handling at the end of the litigation, and serve the ends of justice, a

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protective order for such information is justified in this matter. It is the intent of the

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parties that information will not be designated as confidential for tactical reasons and

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that nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be part of

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the public record of this case.

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2.

DEFINITIONS

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2.1

Action: this pending federal law suit.

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2.2

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

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information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of how

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

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

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Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as their

support staff).
2.5

Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.6

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

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

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things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter
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STIPULATED PROTECTIVE ORDER

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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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2.8

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

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House Counsel: attorneys who are employees of a party to this Action.

2.9

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

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

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2.10

Outside Counsel of Record: attorneys who are not employees of a party to

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

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

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on behalf of that party, and includes support staff.
2.11 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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2.12

Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this Action.

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2.13

Professional Vendors: persons or entities that provide litigation support

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services

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

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their employees and subcontractors.

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2.14

photocopying,

videotaping,

translating,

preparing exhibits

or

Protected Material: any Disclosure or Discovery Material that is designated

as “CONFIDENTIAL.”

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(e.g.,

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Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from
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STIPULATED PROTECTIVE ORDER

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

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

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Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the trial
judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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

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later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;

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

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Even after final disposition of this litigation, the confidentiality obligations

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and (2) final judgment herein after the completion and exhaustion of all appeals,

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rehearings, remands, trials, or reviews of this Action, including the time limits for filing

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any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

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

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

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appropriate standards. The Designating Party must designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify so that

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other portions of the material, documents, items, or communications for which protection

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is not warranted are not swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating 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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STIPULATED PROTECTIVE ORDER

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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 inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

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

Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins).

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A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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

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qualifies for protection, the Producing Party also must clearly identify the protected

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

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(b)

for testimony given in depositions that the Designating Party identify the

Disclosure or Discovery Material on the record, before the close of the deposition all
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STIPULATED PROTECTIVE ORDER

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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 is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).
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. Upon

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

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assure that the material is treated in accordance with the provisions of this Order.

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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

of confidentiality at any time that is consistent with the Court’s Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process under Local Rule 37.1 et seq. or follow the procedures for informal,

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telephonic discovery hearings on the Court's website.

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6.3

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 (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until

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the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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 Action

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only for prosecuting, defending, or attempting to settle this Action. 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 Action has been terminated, a Receiving Party must

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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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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as

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

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to disclose the information for this Action;

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(b)

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

the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

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

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disclosure is reasonably necessary for this Action 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 Action and who have signed

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

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(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(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 1 hereto; and (2) they will not

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be permitted to keep any confidential information unless they sign the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court reporter

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and may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order; and

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(i)

any mediator or settlement officer, and their supporting personnel,

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

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8.

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OTHER LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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

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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;
(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

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(c)

cooperate with respect to all reasonable procedures sought to be pursued 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 the

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

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“CONFIDENTIAL” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The
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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

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from another court.

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9.

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IN THIS LITIGATION

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

by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting a

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Party in this Action and designated as “CONFIDENTIAL.” Such information produced

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

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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 produce

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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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

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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specific description of the information requested; and

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(3)

make the information requested available for inspection by the Non-

Party, if requested.
(c)

If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request.

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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
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any information in its possession or control that is subject to the confidentiality

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

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to the contrary, the Non-Party shall bear the burden and expense of seeking protection

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in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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 to

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

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

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

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

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

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Be Bound” that is attached hereto as Exhibit A.

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11.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF

PRIVILEGED OR

OTHERWISE

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review.

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12.

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

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

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12.2 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 disclosing
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STIPULATED PROTECTIVE ORDER

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

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Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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

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

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party's request to file Protected Material under seal is denied by the

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court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60 days

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of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material.

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Whether the Protected Material is returned or destroyed, the Receiving Party must submit

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a written certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

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the Receiving Party has not retained any copies, abstracts, compilations, summaries or

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any other format reproducing or capturing any of the Protected Material. Notwithstanding

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this 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 archival

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copies that contain or constitute Protected Material remain subject to this Protective
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STIPULATED PROTECTIVE ORDER

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Order as set forth in Section 4 (DURATION).

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14.

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including, without limitation, contempt proceedings and/or monetary

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sanctions.

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
January 6, 2021
DATED: ____________________

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___________________________________
Joshua H. Abel
Evan M. Rothman
Attorneys for Plaintiff and Counter-Defendant
BASWARE, INC.

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DATED: January 5, 2021

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___________________________________
Tami S. Smason
Kathryn A. Shoemaker
Alyssa L. Titche
Attorneys for Defendant and Counterclaimant
HOAG MEMORIAL HOSPITAL PRESBYTERIAN
(erroneously sued as HOAG MEMORIAL HOSPITAL
PRESBYTERIAN, INC.)
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: January 7, 2021

____________________________
Hon. Karen E. Scott
13 United States Magistrate Judge
STIPULATED PROTECTIVE ORDER

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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

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[date] in the case of Basware, Inc. v. Hoag Memorial Hospital Presbyterian, Inc. –

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8:20-cv-00403-KES I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so comply

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could expose me to sanctions and punishment in the nature of contempt. I solemnly

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_________________________ [print or type full address], declare under penalty of

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I,

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

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

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the provisions of this Order.

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

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

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Protective Order, even if such enforcement proceedings occur after termination of this

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action. 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 Stipulated Protective Order.

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Date: ____________________

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City and State where sworn and signed: ______________________________

_________________________

[print

or

type

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Printed name: _________________________

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Signature: ____________________________

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115517\15821241.v1

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STIPULATED PROTECTIVE ORDER

full

name],

of

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PROOF OF SERVICE

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STATE OF CALIFORNIA, ORANGE COUNTY
I, Jeunie Magno, am employed in Orange County, State of California. I am over
the age of 18 and not a party to the within action. My business address is 2601 Main
Street, Suite 1200, CA 92614.

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[phone]

IRVINE, CA 92614

2601 MAIN STREET, SUITE 1200

ABEL LAW OFFICES, PC

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On January 6, 2021, I served the foregoing document(s) described as
STIPULATED PROTECTIVE ORDER on the interested parties in this action
addressed as follows:
Tami S. Smason
Megan Curran
Alyssa L. Titche
Kate Shoemaker
FOLEY & LARDNER LLP
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]

By placing true copies thereof enclosed in a sealed envelope(s) addressed as stated above.


BY PERSONAL SERVICE (CCP §1011): I delivered such envelope(s)
by hand to the addressee(s) as stated above.



BY MAIL (CCP §1013(a)&(b)): I am readily familiar with the firm's
practice of collection and processing correspondence for mailing with the
U.S. Postal Service. Under that practice such envelope(s) is deposited with
the U.S. postal service on the same day this declaration was executed, with
postage thereon fully prepaid at Irvine, California 92614 in the ordinary
course of business.



BY OVERNIGHT DELIVERY (CCP §1013(c)&(d)): I am readily
familiar with the firm's practice of collection and processing items for
delivery with Overnight Delivery. Under that practice such envelope(s) is
deposited at a facility regularly maintained by Overnight Delivery or
delivered to an authorized courier or driver authorized by Overnight
Delivery to receive such envelope(s), on the same day this declaration was
executed, with delivery fees fully provided for at Irvine, California 92614 in
the ordinary course of business.



BY ELECTRONIC SERVICE as follows: I caused such documents to be
transmitted to the electronic mail address of the addressee listed, by use of
electronic service address: [e-mail].

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Attorneys for Defendant
Hoag Memorial Hospital
Presbyterian

I declare under penalty of perjury under the laws of the United States that the
above is true and correct.

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Dated: January 6, 2021

___________________
Jeunie Magno
PROOF OF SERVICE