Russell Jumper v. SBGA, Inc. et al

Filing 21

ORDER ON STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 20 . See document for details. (es)

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1 Paul T. Cullen, CA Bar No. 193575 2 THE CULLEN LAW FIRM, APC 19360 Rinaldi Street, Box 647 3 Porter Ranch, CA 91326 4 Telephone: 818-360-2529 Facsimile: 866-794-5741 5 Attorney for Plaintiff RUSSELL JUMPER, 7 individually on behalf of himself, all others similarly situated, and the general public 6 8 9 ALEXANDER M. CHEMERS, CA Bar No. 263726 10 11 12 13 DANIEL N. ROJAS, CA Bar No. 326115 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213-239-9800 Facsimile: 213-239-9045 14 Attorneys for Defendant SBGA INC. 15 16 UNITED STATES DISTRICT COURT 17 CENTRAL DISTRICT OF CALIFORNIA 18 19 RUSSELL JUMPER, an individual, on behalf of himself, all others similarly 20 situated, and the general public, Case No. 8:22-cv-01764-WLH-DFM Plaintiff, ORDER ON STIPULATED PROTECTIVE ORDER 23 SBGA INC., a Delaware corporation, Complaint Filed: September 26, 2022 Trial Date: March 26, 2024 District Judge: Hon. Wesley L. Hsu Magistrate Judge: Hon. Douglas F. McCormick 21 22 v. ROBERT T. PARISI, an individual, 24 JASON MOORE, and DOES 1 through 10, 25 26 Defendants. 27 28 Case No. 8:22-cv-01764-WLH-DFM STIPULATED PROTECTIVE ORDER 1 A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does 7 not confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable 10 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 11 that this Stipulated Protective Order does not entitle them to file confidential 12 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 13 followed and the standards that will be applied when a party seeks permission from 14 the court to file material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve trade secrets, customer and pricing lists and other 17 valuable research, development, commercial, financial, technical and/or proprietary 18 information for which special protection from public disclosure and from use for any 19 purpose other than prosecution of this action is warranted. Such confidential and 20 proprietary materials and information consist of, among other things, confidential 21 business or financial information, information regarding confidential business 22 practices, or other confidential research, development, or commercial information 23 (including information implicating privacy rights of third parties), information 24 otherwise generally unavailable to the public, or which may be privileged or otherwise 25 protected from disclosure under state or federal statutes, court rules, case decisions, or 26 common law. Accordingly, to expedite the flow of information, to facilitate the 27 prompt resolution of disputes over confidentiality of discovery materials, to 28 adequately protect information the parties are entitled to keep confidential, to ensure 1 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 that the parties are permitted reasonable necessary uses of such material in preparation 2 for and in the conduct of trial, to address their handling at the end of the litigation, and 3 serve the ends of justice, a protective order for such information is justified in this 4 matter. It is the intent of the parties that information will not be designated as 5 confidential for tactical reasons and that nothing be so designated without a good faith 6 belief that it has been maintained in a confidential, non-public manner, and there is 7 good cause why it should not be part of the public record of this case. 8 1. 9 10 11 12 13 DEFINITIONS 1.1 Action: Russell Jumper v. SBGA Inc., et al., Case No. 8:22-cv-01764- WLH-DFM. 1.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 1.3 “CONFIDENTIAL” Information or Items: information (regardless of 14 how it is generated, stored or maintained) or tangible things that qualify for 15 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the 16 Good Cause Statement. 17 18 19 1.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 1.5 Designating Party: a Party or Non-Party that designates information or 20 items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 1.6 Disclosure of Discovery Material: all items or information, regardless 23 of the medium or manner in which it is generated, stored, or maintained (including, 24 among other things, testimony, transcripts, and tangible things), that are produced or 25 generated in disclosures or responses to discovery in this matter. 26 1.7 Expert: a person with specialized knowledge or experience in a matter 27 pertinent to the litigation who has been retained by a Party or its counsel to serve as 28 an expert witness or as a consultant in this Action. 2 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1.8 1 House Counsel: attorneys who are employees of a party to this Action. 2 House Counsel does not include Outside Counsel of Record or any other outside 3 counsel. 1.9 4 5 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 1.10 Outside Counsel of Record: attorneys who are not employees of a party 6 7 to this Action but are retained to represent or advise a party to this Action and have 8 appeared in this Action on behalf of that party or are affiliated with a law firm which 9 has appeared on behalf of that party, and includes support staff. 1.11 Party: any party to this Action, including all of its officers, directors, 10 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 1.12 Producing Party: a Party or Non-Party that produces Disclosure of 13 14 Discovery Material in this Action. 1.13 Professional Vendors: persons or entities that provide litigation support 15 16 services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 1.14 Protected Material: any Disclosure of Discovery Material that is 19 20 designated as “CONFIDENTIAL.” 1.15 Receiving Party: a Party that receives Disclosure of Discovery Material 21 22 from a Producing Party. 23 2. 24 SCOPE The protections conferred by this Stipulation and Order cover not only Protected 25 Material (as defined above), but also (1) any information copied or extracted from 26 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 27 Material; and (3) any testimony, conversations, or presentations by Parties or their 28 Counsel that might reveal Protected Material. 3 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM Any use of Protected Material at trial shall be governed by the orders of the trial 1 2 judge. This Order does not govern the use of Protected Material at trial. 3 3. DURATION 4 Even after final disposition of this litigation, the confidentiality obligations 5 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 6 in writing or a court order otherwise directs. Final disposition shall be deemed to be 7 the later of (1) dismissal of all claims and defenses in this Action, with or without 8 prejudice; and (2) final judgment herein after the completion and exhaustion of all 9 appeals, rehearings, remands, trials, or reviews of this Action, including the time limits 10 for filing any motions or applications for extension of time pursuant to applicable law. 11 4. DESIGNATING PROTECTED MATERIAL 12 4.1 Exercise of Restraint and Care in Designating Material for Protection. 13 Each Party or Non-Party that designates information or items for protection under 14 this Order must take care to limit any such designation to specific material that 15 qualifies under the appropriate standards. The Designating Party must designate for 16 protection only those parts of material, documents, items, or oral or written 17 communications that qualify so that other portions of the material, documents, items, 18 or communications for which protection is not warranted are not swept unjustifiably 19 within the ambit of this Order. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations 21 that are shown to be clearly unjustified or that have been made for an improper purpose 22 (e.g., to unnecessarily encumber the case development process or to impose 23 unnecessary expenses and burdens on other parties) may expose the Designating Party 24 to sanctions. 25 If it comes to a Designating Party’s attention that information or items that it 26 designated for protection do not qualify for protection, that Designating Party must 27 promptly notify all other Parties that it is withdrawing the inapplicable designation. 28 4.2 Manner and Timing of Designations. Except as otherwise provided in 4 Case No. 8:22-cv-01764-WLH-DFM STIPULATED PROTECTIVE ORDER 54044465.v1-OGLETREE 1 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 2 stipulated or ordered, Disclosure of Discovery Material that qualifies for protection 3 under this Order must be clearly so designated before the material is disclosed or 4 produced. 5 6 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic 7 documents, but excluding transcripts of depositions or other pretrial or trial 8 proceedings), that the Producing Party affix at a minimum, the legend 9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 10 contains protected material. If only a portion or portions of the material on a page 11 qualifies for protection, the Producing Party also must clearly identify the protected 12 portion(s) (e.g., by making appropriate markings in the margins). 13 A Party or Non-Party that makes original documents available for inspection 14 need not designate them for protection until after the inspecting Party has indicated 15 which documents it would like copied and produced. During the inspection and before 16 the designation, all of the material made available for inspection shall be deemed 17 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 18 copied and produced, the Producing Party must determine which documents, or 19 portions thereof, qualify for protection under this Order. Then, before producing the 20 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 21 to each page that contains Protected Material. If only a portion or portions of the 22 material on a page qualifies for protection, the Producing Party also must clearly 23 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 24 (b) for testimony given in depositions that the Designating Party 25 identify the Disclosure of Discovery Material on the record, before the close of the 26 deposition all protected testimony. 27 (c) for information produced in some form other than documentary 28 and for any other tangible items, that the Producing Party affix in a prominent place 5 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 on the exterior of the container or containers in which the information is stored the 2 legend “CONFIDENTIAL.” If only a portion or portions of the information 3 warrants protection, the Producing Party, to the extent practicable, shall identify the 4 protected portion(s). 4.3 5 Inadvertent Failures to Designate. If timely corrected, an inadvertent 6 failure to designate qualified information or items does not, standing alone, waive 7 the Designating Party’s right to secure protection under this Order for such material. 8 Upon timely correction of a designation, the Receiving Party must make reasonable 9 efforts to assure that the material is treated in accordance with the provisions of this 10 Order. 11 5. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5.1 12 Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time that is consistent with the Court’s 14 Scheduling Order. 5.2 15 16 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 5.3 17 The burden of persuasion in any such challenge proceeding shall be on 18 the Designating Party. Frivolous challenges, and those made for an improper 19 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 20 parties) may expose the Challenging Party to sanctions. Unless the Designating 21 Party has waived or withdrawn the confidentiality designation, all parties shall 22 continue to afford the material in question the level of protection to which it is 23 entitled under the Producing Party’s designation until the Court rules on the 24 challenge. 25 6. 26 ACCESS TO AND USE OF PROTECTED MATERIAL 6.1 Basic Principles. A Receiving Party may use Protected Material that is 27 disclosed or produced by another Party or by a Non-Party in connection with this 28 Action only for prosecuting, defending, or attempting to settle this Action. Such 6 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 Protected Material may be disclosed only to the categories of persons and under the 2 conditions described in this Order. When the Action has been terminated, a 3 Receiving Party must comply with the provisions of section 13 below (FINAL 4 DISPOSITION). 5 Protected Material must be stored and maintained by a Receiving Party at a 6 location and in a secure manner that ensures that access is limited to the persons 7 authorized under this Order. 8 9 6.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 10 Receiving Party may disclose any information or item designated 11 “CONFIDENTIAL” only to: 12 (a) the Receiving Party’s Outside Counsel of Record in this Action, 13 as well as employees of said Outside Counsel of Record to whom it is reasonably 14 necessary to disclose the information for this Action; 15 16 17 (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 18 disclosure is reasonably necessary for this Action and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 20 (d) the court and its personnel; 21 (e) court reporters and their staff; 22 (f) professional jury or trial consultants, mock jurors, and 23 Professional Vendors to whom disclosure is reasonably necessary for this Action and 24 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 26 27 28 (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 Action to whom disclosure is reasonably necessary provided: (1) the deposing 7 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 party requests that the witness sign the form attached as Exhibit 1 hereto; and (2) 2 they will not be permitted to keep any confidential information unless they sign the 3 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 4 agreed by the Designating Party or ordered by the court. Pages of transcribed 5 deposition testimony or exhibits to depositions that reveal Protected Material may be 6 separately bound by the court reporter and may not be disclosed to anyone except as 7 permitted under this Stipulated Protective Order; and (i) 8 9 any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement 10 discussions. 11 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 12 OTHER LITIGATION 13 If a Party is served with a subpoena or a court order issued in other litigation 14 that compels disclosure of any information or items designated in this Action as 15 “CONFIDENTIAL,” that Party must: 16 (a) promptly notify in writing the Designating Party. Such 17 notification shall include a copy of the subpoena or court order; 18 (b) promptly notify in writing the party who caused the subpoena or 19 order to issue in the other litigation that some or all of the material covered by the 20 subpoena or order is subject to this Protective Order. Such notification shall include 21 a copy of this Stipulated Protective Order; and 22 (c) cooperate with respect to all reasonable procedures sought to be 23 pursued by the Designating Party whose Protected Material may be affected. 24 If the Designating Party timely seeks a protective order, the Party served with 25 the subpoena or court order shall not produce any information designated in this action 26 as “CONFIDENTIAL” before a determination by the court from which the subpoena 27 or order issued, unless the Party has obtained the Designating Party’s permission. The 28 Designating Party shall bear the burden and expense of seeking protection in that court 8 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 of its confidential material and nothing in these provisions should be construed as 2 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 3 directive from another court. 4 8. 5 6 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by 7 a Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 8 produced by Non-Parties in connection with this litigation is protected by the 9 remedies and relief provided by this Order. Nothing in these provisions should be 10 11 construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, 12 to produce a Non-Party’s confidential information in its possession, and the Party is 13 subject to an agreement with the Non-Party not to produce the Non-Party’s 14 confidential information, then the Party shall: (1) 15 promptly notify in writing the Requesting Party and the 16 Non-Party that some or all of the information requested is subject to a confidentiality 17 agreement with a Non-Party; (2) 18 promptly provide the Non-Party with a copy of the 19 Stipulated Protective Order in this Action, the relevant discovery request(s), and a 20 reasonably specific description of the information requested; and (3) 21 make the information requested available for inspection by 22 the Non-Party, if requested. 23 (c) If the Non-Party fails to seek a protective order from this court 24 within 14 days of receiving the notice and accompanying information, the Receiving 25 Party may produce the Non-Party’s confidential information responsive to the 26 discovery request. If the Non-Party timely seeks a protective order, the Receiving 27 Party shall not produce any information in its possession or control that is subject to 28 the confidentiality agreement with the Non-Party before a determination by the 9 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 court. Absent a court order to the contrary, the Non-Party shall bear the burden and 2 expense of seeking protection in this court of its Protected Material. 3 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 4 5 Protected Material to any person or in any circumstance not authorized under this 6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 9 persons to whom unauthorized disclosures were made of all the terms of this Order, 10 and (d) request such person or persons to execute the “Acknowledgment and 11 Agreement to Be Bound” that is attached hereto as Exhibit A. 12 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 13 PROTECTED MATERIAL 14 When a Producing Party gives notice to Receiving Parties that certain 15 inadvertently produced material is subject to a claim of privilege or other protection, 16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 18 may be established in an e-discovery order that provides for production without prior 19 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 20 parties reach an agreement on the effect of disclosure of a communication or 21 information covered by the attorney-client privilege or work product protection, the 22 parties may incorporate their agreement in the stipulated protective order submitted to 23 the court. 24 11. MISCELLANEOUS 25 11.1 Right to Further Relief. Nothing in this Order abridges the right of any 26 27 28 person to seek its modification by the Court in the future. 11.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to 10 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 disclosing or producing any information or item on any ground not addressed in this 2 Stipulated Protective Order. Similarly, no Party waives any right to object on any 3 ground to use in evidence of any of the material covered by this Protective Order. 4 11.3 Filing Protected Material. A Party that seeks to file under seal any 5 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 6 only be filed under seal pursuant to a court order authorizing the sealing of the 7 specific Protected Material at issue. If a Party’s request to file Protected Material 8 under seal is denied by the court, then the Receiving Party may file the information 9 in the public record unless otherwise instructed by the court. 10 11 12. FINAL DISPOSITION After the final disposition of this Action, as defined in paragraph 4, within 60 12 days of a written request by the Designating Party, each Receiving Party must return 13 all Protected Material to the Producing Party or destroy such material. As used in this 14 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 15 summaries, and any other format reproducing or capturing any of the Protected 16 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 17 must submit a written certification to the Producing Party (and, if not the same person 18 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 19 category, where appropriate) all the Protected Material that was returned or destroyed 20 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 21 compilations, summaries or any other format reproducing or capturing any of the 22 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 23 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 24 legal memoranda, correspondence, deposition and trial exhibits, expert reports, 25 attorney work product, and consultant and expert work product, even if such materials 26 contain Protected Material. Any such archival copies that contain or constitute 27 Protected Material remain subject to this Protective Order as set forth in Section 4 28 (DURATION). 11 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of 3 4 _____________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulated Protective Order 6 that was issued by the United States District Court for the Central District of California 7 in the case of Russell Jumper v. SBGA Inc., et al., Case No. 8:22-cv-01764-WLH8 DFM. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 11 that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court 14 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint _____________________________ [print 18 or type full name] of _____________________________ [print or type full address 19 and telephone number] as my California agent for service of process in connection 20 with this action or any proceedings related to enforcement of this Stipulated Protective 21 Order. 22 Date: 23 City and State where sworn and signed: 24 25 Printed name: 26 27 Signature: 28 13 STIPULATED PROTECTIVE ORDER Case No. 8:22-cv-01764-WLH-DFM

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