32nd District Agricultural Association, a California State Institution et al

Filing 25

PROTECTIVE ORDER by Magistrate Judge John D. Early re Stipulation for Protective Order 24 . (see document for details) (hr)

Case 8:20-cv-02049-CJC-JDE Document 25 Filed 09/09/21 Page 1 of 16 Page ID #:140

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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32ND DISTRICT AGRICULTURAL
ASSOCIATION, A CALIFORNIA STATE
INSTITUTION,
Plaintiff,

8:20-cv-02049-CJC (JDEx)
STIPULATED PROTECTIVE
ORDER

v.
OVATIONS FANFARE, L.P., A
PENNSYLVANIA LIMITED
PARTNERSHIP, DBA SPECTRA FOOD
SERVICE AND HOSPITALITY, AN
ENTITY OF UNKNOWN FORM AND
DOES 1-20, INCLUSIVE,
Defendant.
OVATIONS FANFARE, L.P., A
PENNSYLVANIA LIMITED
PARTNERSHIP, DBA SPECTRA FOOD
SERVICE AND HOSPITALITY, AN
ENTITY OF UNKNOWN FORM AND
DOES 1-20, INCLUSIVE,
Counterclaimant,
v.
32ND DISTRICT AGRICULTURAL
ASSOCIATION, A CALIFORNIA STATE
INSTITUTION,
Counterdefendant.
Based on the parties’ Stipulation (Dkt. 24), and for good cause shown,
the Court finds and orders as follows.
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1.

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

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proprietary or private information for which special protection from public

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disclosure and from use for any purpose other than pursuing this litigation may

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

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Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that

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are entitled to confidential treatment under the applicable legal principles.

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2.

GOOD CAUSE STATEMENT

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This action is likely to involve commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and

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from use for any purpose other than prosecution of this action is warranted.

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Such confidential and proprietary materials and information consist of, among

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other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential research,

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development, or commercial information (including information implicating

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privacy rights of third parties), information otherwise generally unavailable to

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the public, or which may be privileged or otherwise protected from disclosure

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under state or federal statutes, court rules, case decisions, or common law.

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

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resolution of disputes over confidentiality of discovery materials, to adequately

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

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the parties are permitted reasonable necessary uses of such material in

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preparation for and in the conduct of trial, to address their handling at the end

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of the litigation, and serve the ends of justice, a protective order for such

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information is justified in this matter. It is the intent of the parties that
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information will not be designated as confidential for tactical reasons and that

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

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

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be part of the public record of this case.

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3.

PROCEDURE

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ACKNOWLEDGMENT OF UNDER SEAL FILING

The parties further acknowledge, as set forth in Section 14.3, below, that

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this Stipulated Protective Order does not entitle them to file confidential

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

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

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permission from the court to file material under seal. There is a strong

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presumption that the public has a right of access to judicial proceedings and

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records in civil cases. In connection with non-dispositive motions, good cause

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must be shown to support a filing under seal. See Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors Corp.,

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307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics, Inc., 187

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F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require

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good cause showing), and a specific showing of good cause or compelling

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reasons with proper evidentiary support and legal justification, must be made

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with respect to Protected Material that a party seeks to file under seal. The

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parties’ mere designation of Disclosure or Discovery Material as

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CONFIDENTIAL does not— without the submission of competent evidence

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by declaration, establishing that the material sought to be filed under seal

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qualifies as confidential, privileged, or otherwise protectable—constitute good

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cause.

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Further, if a party requests sealing related to a dispositive motion or trial,

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then compelling reasons, not only good cause, for the sealing must be shown,

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and the relief sought shall be narrowly tailored to serve the specific interest to
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be protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.

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2010). For each item or type of information, document, or thing sought to be

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filed or introduced under seal, the party seeking protection must articulate

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compelling reasons, supported by specific facts and legal justification, for the

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requested sealing order. Again, competent evidence supporting the application

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to file documents under seal must be provided by declaration.

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Any document that is not confidential, privileged, or otherwise

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protectable in its entirety will not be filed under seal if the confidential portions

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can be redacted. If documents can be redacted, then a redacted version for

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public viewing, omitting only the confidential, privileged, or otherwise

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protectable portions of the document, shall be filed. Any application that seeks

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to file documents under seal in their entirety should include an explanation of

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why redaction is not feasible.

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4.

DEFINITIONS

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4.1

“Action”: 32nd District Agricultural Association v. Ovations Fanfare,

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L.P. (8:20-cv-02049-CJC-JDE)
4.2

“Challenging Party”: a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless

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

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protection under Federal Rule of Civil Procedure 26(c), and as specified above

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in the Good Cause Statement.

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4.4

“Counsel”: Outside Counsel of Record and House Counsel (as well

as their support staff).
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“Designating Party”: a Party or Non-Party that designates

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information or items that it produces in disclosures or in responses to discovery

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as “CONFIDENTIAL.”

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4.6

“Disclosure or Discovery Material”: all items or information,
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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and tangible

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things), that are produced or generated in disclosures or responses to discovery.

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“Expert”: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel

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to serve as an expert witness or as a consultant in this Action.

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“House Counsel”: attorneys who are employees of a party to this

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Action. House Counsel does not include Outside Counsel of Record or any

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other outside counsel.

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4.9

“Non-Party”: any natural person, partnership, corporation,

association, or other legal entity not named as a Party to this action.
4.10 “Outside Counsel of Record”: attorneys who are not employees of

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a party to this Action but are retained to represent a party to this Action and

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have appeared in this Action on behalf of that party or are affiliated with a law

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firm that has appeared on behalf of that party, including support staff.

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4.11 “Party”: any party to this Action, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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4.12 “Producing Party”: a Party or Non-Party that produces Disclosure
or Discovery Material in this Action.
4.13 “Professional Vendors”: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing

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exhibits or demonstrations, and organizing, storing, or retrieving data in any

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form or medium) and their employees and subcontractors.

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

Material from a Producing Party.
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5.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

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

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of

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the trial judge and other applicable authorities. This Order does not govern the

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use of Protected Material at trial.

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6.

DURATION

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Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively

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available to all members of the public, including the press, unless compelling

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reasons supported by specific factual findings to proceed otherwise are made to

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the trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81

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(distinguishing “good cause” showing for sealing documents produced in

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discovery from “compelling reasons” standard when merits-related documents

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are part of court record). Accordingly, the terms of this protective order do not

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extend beyond the commencement of the trial.

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7.

DESIGNATING PROTECTED MATERIAL

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7.1

Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material,

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documents, items, or oral or written communications that qualify so that other

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portions of the material, documents, items, or communications for which
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protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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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 designated for protection do not qualify for protection, that Designating

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Party must promptly notify all other Parties that it is withdrawing the

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inapplicable designation.

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7.2

Manner and Timing of Designations. Except as otherwise provided

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in this Order, or as otherwise stipulated or ordered, Disclosure of Discovery

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Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page

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

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

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

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

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inspection need not designate them for protection until after the inspecting

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Party has indicated which documents it would like copied and produced.

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During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “CONFIDENTIAL.” After the
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inspecting Party has identified the documents it wants copied and produced,

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the Producing Party must determine which documents, or portions thereof,

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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

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

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

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the protected portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party

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identifies the Disclosure or Discovery Material on the record, before the close
of the deposition all protected testimony.
(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information is

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

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information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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7.3

Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not,

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standing alone, waive the Designating Party’s right to secure protection under

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this Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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8.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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

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Scheduling Order.
8.2 Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process under Local Rule 37-1 et seq.
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8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
joint stipulation pursuant to Local Rule 37-2.
8.4 The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an

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improper purpose (e.g., to harass or impose unnecessary expenses and burdens

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on other parties) may expose the Challenging Party to sanctions. Unless the

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Designating Party has waived or withdrawn the confidentiality designation, all

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

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which it is entitled under the Producing Party’s designation until the Court

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rules on the challenge.

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9.

ACCESS TO AND USE OF PROTECTED MATERIAL

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

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

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this Action only for prosecuting, defending, or attempting to settle this Action.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 15

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party

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

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persons authorized under this Order.

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9.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this
Action, as well as employees of said Outside Counsel of Record to whom it is
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reasonably necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this Action;

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

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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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(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

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Professional Vendors to whom disclosure is reasonably necessary for this

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Action and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g) the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew

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the information;

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(h) during their depositions, witnesses\ and attorneys for witnesses

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

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deposing party requests that the witness sign the form attached as Exhibit A

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hereto; and (2) the witness will not be permitted to keep any confidential

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information unless the witness signs the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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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

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court reporter and may not be disclosed to anyone except as permitted under

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this Stipulated Protective Order; and

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(i) any mediators or settlement officers and their supporting
personnel, mutually agreed upon by any of the parties engaged in settlement
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discussions.
10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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

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litigation that compels disclosure of any information or items designated in this

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Action as “CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such

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notification shall include a copy of the subpoena or court order;

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

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or order to issue in the other litigation that some or all of the material covered

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by the subpoena or order is subject to this Protective Order. Such notification

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shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be affected. If

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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

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

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

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Party’s permission or the Party is otherwise legally obligated to produce. The

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Designating Party shall bear the burden and expense of seeking protection in

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that court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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11.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO

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BE PRODUCED IN THIS LITIGATION

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

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by a Non-Party in this Action and designated as “CONFIDENTIAL.” Such

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information produced by Non-Parties in connection with this litigation is
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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.
(b) In the event that a Party is required, by a valid discovery

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request, to produce a Non-Party’s confidential information in its possession,

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and the Party is subject to an agreement with the Non-Party not to produce the

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Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(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

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reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court

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

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Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession

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or control that is subject to the confidentiality agreement with the Non-Party

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before a determination by the court. Absent a court order to the contrary, the

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Non-Party shall bear the burden and expense of seeking protection in this court

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of its Protected Material.

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12.

UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not
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authorized under this Stipulated Protective Order, the Receiving Party must

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immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (d) request such

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person or persons to execute the “Acknowledgment an Agreement to Be

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Bound” attached hereto as Exhibit A.
13.

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INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides

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for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect

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of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their

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agreement in the stipulated protective order submitted to the court.

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14.

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

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MISCELLANEOUS

any person to seek its modification by the Court in the future.
14.2 Right to Assert Other Objections. By stipulating to the entry of this

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

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

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in this Stipulated Protective Order. Similarly, no Party waives any right to

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object on any ground to use in evidence of any of the material covered by this

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Protective Order.
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14.3 Filing Protected Material. A Party that seeks to file under seal any

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

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Material may only be filed under seal pursuant to a court order authorizing the

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sealing of the specific Protected Material. If a Party’s request to file Protected

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

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information in the public record unless otherwise instructed by the court.

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15.

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After the final disposition of this Action, as defined in paragraph 6,

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FINAL DISPOSITION

within 60 days of a written request by the Designating Party, each Receiving

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Party must return all Protected Material to the Producing Party or destroy such

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

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

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

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returned or destroyed, the Receiving Party must submit a written certification

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to the Producing Party (and, if not the same person or entity, to the Designating

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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

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(2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of

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the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and

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hearing transcripts, legal memoranda, correspondence, deposition and trial

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

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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

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Protective Order as set forth in Section 6 (DURATION).

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16.

VIOLATION

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Any violation of this Order may be punished by appropriate measures
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including, without limitation, contempt proceedings, monetary sanctions, or

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both.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: September 09, 2021

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_________________________________
JOHN D. EARLY
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,________________________________[print or type full name], of

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_____________________________________[print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court

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for the Central District of California on _______ [date] in the case of 32nd

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District Agricultural Association v. Ovations Fanfare, L.P. (8:20-cv-02049-CJC-

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JDE). I agree to comply with and to be bound by all the terms of this Stipulated

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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

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

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

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except in strict compliance with the provisions of this Order.

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

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Court for the Central District of California for the purpose of enforcing the

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terms of this Stipulated Protective Order, even if such enforcement proceedings

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occur after termination of this action.

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I hereby appoint ____________________________ [print or type full

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name] of ___________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection

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with this action or any proceedings related to enforcement of this Stipulated

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Protective Order.

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Dated:_________________

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City and State where sworn and signed:________________________

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Printed Name:_________________________

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Signature:_______________________
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