Jennifer Karlsson v. Security Innovation, Inc. et al

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge John D. Early: granting Stipulation for Protective Order 16 . (lom) Modified on 5/22/2023 (lom).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION
) Case No. 8:23-cv-00037-JWH-JDE
)
)
) STIPULATED PROTECTIVE
Plaintiff,
) ORDER
)
)
v.
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SECURITY INNOVATION, INC., a ))
Delaware corporation; and DOES 1-50, )
inclusive,
)
)
Defendants.
)
JENNIFER KARLSSON,

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Based on the Parties’ Stipulation, the Court finds and orders as follows.

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1.

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

PURPOSES AND LIMITATIONS

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

GOOD CAUSE STATEMENT

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and other valuable research; sales, commissions, and sales quota information;

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customer invoices; royalty agreements; employment agreements and

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termination correspondence; medical and health information; payroll

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information; performance reviews; development, commercial, financial,
technical and/or proprietary information; and email correspondence regarding
the foregoing, for which special protection from public disclosure and from use
for any purpose other than prosecution of this action is warranted. Such
confidential and proprietary materials and information consist of, among other
things, confidential business or financial information, information regarding
confidential business practices, or other confidential research, development, or
commercial information (including information implicating privacy rights of
third parties), information otherwise generally unavailable to the public, or

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which may be privileged or otherwise protected from disclosure under state or

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federal statutes, court rules, case decisions, or common law. Accordingly, to

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

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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

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permitted reasonable necessary uses of such material in preparation for and in

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the conduct of trial, to address their handling at the end of the litigation, and

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serve the ends of justice, a protective order for such information is justified in

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this matter. It is the intent of the parties that information will not be designated

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as confidential for tactical reasons and that nothing be so designated without a

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good faith belief that it has been maintained in a confidential, non-public
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manner, and there is good cause why it should not be part of the public record

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of this case.

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3.

ACKNOWLEDGMENT OF UNDER SEAL FILING
PROCEDURE

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
permission from the court to file material under seal. There is a strong
presumption that the public has a right of access to judicial proceedings and
records in civil cases. In connection with non-dispositive motions, good cause
must be shown to support a filing under seal. See Kamakana v. City and
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony
Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated
protective orders require good cause showing), and a specific showing of good

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cause or compelling reasons with proper evidentiary support and legal

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justification, must be made with respect to Protected Material that a party

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seeks to file under seal. The parties’ mere designation of Disclosure or

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Discovery Material as CONFIDENTIAL does not— without the submission

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of competent evidence by declaration, establishing that the material sought to

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be filed under seal qualifies as confidential, privileged, or otherwise

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protectable—constitute good 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
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Cir. 2010). For each item or type of information, document, or thing sought to

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be 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
protectable in its entirety will not be filed under seal if the confidential portions
can be redacted. If documents can be redacted, then a redacted version for
public viewing, omitting only the confidential, privileged, or otherwise
protectable portions of the document, shall be filed. Any application that seeks
to file documents under seal in their entirety should include an explanation of
why redaction is not feasible.
4.

DEFINITIONS

4.1

Action: The above-captioned pending federal lawsuit.

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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

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c), and as

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specified above 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,

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

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

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4.8

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

Action. House Counsel does not include Outside Counsel of Record or any
other outside counsel.
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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 a
party to this Action but are retained to represent a party to this Action and
have appeared in this Action on behalf of that party or are affiliated with a law
firm that has appeared on behalf of that party, and includes support staff.
4.11 Party: any party to this Action, including all of its officers,
directors, employees, consultants, retained experts, and Outside Counsel of
Record (and their support staffs).
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.”
4.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
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4.16 Final Disposition: a full and final settlement by all parties or a
verdict for which all appeals have been exhausted.

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5.

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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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SCOPE

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of
the trial judge and other applicable authorities. This Order does not govern the
use of Protected Material at trial.
6.

DURATION

Once a case proceeds to trial, information that was designated as
CONFIDENTIAL or maintained pursuant to this protective order used or
introduced as an exhibit at trial becomes public and will be presumptively
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

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or items for protection under this Order must take care to limit any such

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designation to specific material that qualifies under the appropriate standards.
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The Designating Party must designate for protection only those parts of

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

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that other portions of the material, documents, items or communications for

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which protection is not warranted are not swept unjustifiably within the ambit

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of this Order.

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Mass, indiscriminate or routinized designations are prohibited.
Designations that are shown to be clearly unjustified or that have been made
for an improper purpose (e.g., to unnecessarily encumber the case development
process or to impose unnecessary expenses and burdens on other parties) may
expose the Designating Party to sanctions.
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
Party must promptly notify all other Parties that it is withdrawing the
inapplicable designation.
7.2

Manner and Timing of Designations. Except as otherwise

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

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Discovery Material that qualifies for protection under this Order must be

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clearly so 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). A

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Party or Non-Party that makes original documents available for inspection
need not designate them for protection until after the inspecting Party has
indicated which documents it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party
has identified the documents it wants copied and produced, the Producing
Party must determine which documents, or portions thereof, qualify for
protection under this Order. Then, before producing the specified documents,
the Producing Party must affix the “CONFIDENTIAL legend” to each page
that contains Protected Material. If only a portion of the material on a page
qualifies for protection, the Producing Party also must clearly identify 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 information it considers to be Confidential by (a) identifying the

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Confidential information and/or documents at the time of the deposition and

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requesting that the Court Reporter prepare a separate confidential transcript

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regarding such testimony, exhibits, or other materials, or (b) serving a written

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designation of the Confidential testimony, exhibits, or other materials on the

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other parties to this agreement and on the Court Reporter within thirty (30)

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calendar days after receiving such transcript.

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(c) for information produced in some form other than

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documentary and for any other tangible items, that the Producing Party affix

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in a prominent place on the exterior of the container or containers in which the

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information is stored the legend “CONFIDENTIAL.” If only a portion or

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portions of the information warrants protection, the Producing Party, to the

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extent practicable, shall identify the protected portion(s).

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7.3

discovers its inadvertent failure to designate materials as Confidential, the
Designating Party’s inadvertent failure to designate qualified information or
items does not, standing alone, waive the Designating Party’s right to secure
protection under this Order for such material if that error is timely corrected.
Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order. The Designating Party shall then provide the
Receiving Party with the same materials marked as Confidential, and the
Receiving Party shall promptly return or destroy the unmarked materials, and,
if destroyed, shall confirm same in writing with the Designating Party.
In addition, if the Receiving Party has inadvertently received materials

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Inadvertent Failures to Designate. If a Designating Party

which that party knows, or has reason to believe, should have been designated

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as Confidential but was not so marked, that Receiving Party shall immediately

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notify the party who produced those materials and allow the producing party

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to subsequently mark those materials as Confidential if warranted. At all

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times, the Receiving Party shall treat those materials as Confidential unless the

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producing party indicates in writing that the materials are not confidential. If

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the materials are, in fact, Confidential, the Designating Party shall then

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provide the Receiving Party with the same materials marked as Confidential,

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and the Receiving Party shall promptly return or destroy the unmarked

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materials, and, if destroyed, shall confirm same in writing with the Designating

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Party.

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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 in accordance with this section. The Court, of course, has
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the inherent jurisdiction to decide at any time whether a Confidential
designation is appropriate and/or whether any such documents should be
sealed in response to a motion to seal records. However, if a Party contends
that any marked material is not entitled to confidential treatment, that Party
must serve a written objection on the Designating Party within twenty-one (21)
calendar days of receiving materials marked as Confidential or receiving
designations of Confidential deposition testimony or deposition exhibits. That
objection should ask the Designating Party to provide the basis of the
confidentiality designation. If a dispute then arises over that Confidential
marking or designation, the Parties shall initiate the dispute resolution process
under Local Rule 37-1, et seq. If a Party does not challenge a Confidential
marking or designation within the aforementioned twenty-one (21) day period,
that Party waives the right to challenge the confidentiality of those materials.
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Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.
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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

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be 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

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to 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

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

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

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Action. Such Protected Material may be disclosed only to the categories of

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persons and under the conditions described in this Order. When the Action has

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

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15 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party
at a location and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
9.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this

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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;

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(b) the officers, directors, and employees (including House

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

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for 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,
in the Action to whom disclosure is reasonably necessary provided: (1) the
deposing party requests that the witness sign the form attached as Exhibit A
hereto; and (2) they will not be permitted to keep any confidential information
unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit
A), unless otherwise agreed by the Designating Party or ordered by the court.
Pages of transcribed deposition testimony or exhibits to depositions that reveal
Protected Material may be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Stipulated Protective
Order; and
(i) any mediators or settlement officers and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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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:

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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
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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

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(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
the subpoena or order issued, unless the Party has obtained the Designating
Party’s permission. The Designating Party shall bear the burden and expense
of seeking protection in that court of its confidential material and nothing in
these provisions should be construed as authorizing or encouraging a
Receiving Party in this Action to disobey a lawful directive from another court.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
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
request, to produce a Non-Party’s confidential information in its possession,
and the Party is subject to an agreement with the Non-Party not to produce the
Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non13

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Party that some or all of the information requested is subject to a

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confidentiality agreement 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

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reasonably 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.

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(c) If the Non-Party fails to seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information
responsive to the discovery request. If the Non-Party timely seeks a protective
order, the Receiving Party shall not produce any information in its possession
or control that is subject to the confidentiality agreement with the Non-Party
before a determination by the court. Absent a court order to the contrary, the
Non-Party shall bear the burden and expense of seeking protection in this court
of its Protected Material.
12.

UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL

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

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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.
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13.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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13.1 When a Producing Party gives notice to Receiving Parties that

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

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

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

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

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provides for production without prior privilege review. Pursuant to Federal
Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on
the effect of disclosure of a communication or information covered by the
attorney-client privilege or work product protection, the parties may
incorporate their agreement in the stipulated protective order submitted to the
court. The parties agree and the Court orders that Federal Rules of Evidence,
Rule 502, shall govern any Party’s intentional or inadvertent disclosures of
attorney-privileged documents and attorney work product in this lawsuit, and
that any such privilege or protection is not waived by the Party in this or in any

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other federal or state proceeding as between the Parties hereto or anyone else,

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even if those intentional or inadvertent disclosures were made in this matter.

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13.2 If the Receiving Party has inadvertently received materials which

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that party knows, or has reason to believe, are protected from disclosure under

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the attorney-client privilege and/or attorney work product doctrine, that

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Receiving Party shall immediately notify the party who produced those

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materials. At all times, the Receiving Party shall treat those materials as

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privileged and shall not review those materials, unless the producing party

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indicates in writing that the materials are not privileged or protected from

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disclosure under the work-product doctrine. If the materials are, in fact,

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privileged or otherwise protected from disclosure, the Receiving Party shall
promptly return or destroy the unmarked materials, and, if destroyed, shall
confirm same in writing with the Designating Party.
14.

MISCELLANEOUS

14.1 Right to Further Relief. Nothing in this Order abridges the right of
any person to seek its modification by the Court in the future.
14.2 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

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

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

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

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by this 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

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

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15.

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Within sixty (60) calendar days after the Final Disposition of this

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FINAL DISPOSITION

Action, as defined in paragraph 4.16, each Receiving Party must return all
Protected Material to the Producing Party or destroy such material. As used in
this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any
of the Protected Material. Whether the Protected Material is returned or
destroyed, the Receiving Party must submit a written certification to the
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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 (2)

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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
exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such
archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Section 6 (DURATION).
16.

VIOLATION

Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary
sanctions.
IT IS SO ORDERED.
DATED: May 22, 2023

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_________________________________
JOHN D. EARLY
United States Magistrate Judge

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EXHIBIT A

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CERTIFICATE REGARDING CONFIDENTIALITY

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I hereby certify the following: (a) I understand that Confidential

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Information is being provided to me under the terms and restrictions of the

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Parties’ Stipulation and Protective Order in Karlsson v. Security Innovation, Inc.,

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United States District Court for the Central District of California, Case No.

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8:23-cv-00037-JWH-JDE, and (b) I have read the Stipulation and Protective

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Order. I understand and agree to be bound by the terms of the Stipulation and

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Protective Order and will not disclose to anyone the Confidential Information

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or the substance of any Confidential Information that I have received or

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reviewed in this case. I hereby submit to the jurisdiction of the Central District

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Court for purposes of enforcing the Stipulation and Protective Order. I also

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agree to return all Confidential Information including all tangible things and to

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delete all electronic files containing Confidential Information received by me

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during the course of my involvement with this litigation within sixty (60)

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calendar days of the settlement or final resolution of this matter (i.e. a

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settlement by all parties or a verdict for which all appeals have been

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exhausted).

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I understand that if I violate the Stipulation and Protective Order, I will

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be in contempt of court and may also be liable for civil damages in favor of the

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Party who produced the Confidential Information.

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DATED: _______________
(Signature)

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Name:
(Print Name)
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Company Name:
Address:

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Telephone Number:
E-mail:

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1295547/76920204v.1

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