G.P.P., Inc. v. Guardian Protection Products, Inc.

Filing 45

STIPULATION and PROTECTIVE ORDER, signed by Magistrate Judge Sheila K. Oberto on 1/13/2016. (Timken, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
G.P.P., INC. d/b/a GUARDIAN INNOVATIVE
SOLUTIONS,

)
)
)
Plaintiff,
)
)
v.
)
)
GUARDIAN PROTECTION PRODUCTS, INC., )
)
Defendant.
)

CASE NO.: 1:15-cv-00321-SKO
STIPULATED PROTECTIVE
ORDER

IT IS HEREBY STIPULATED AND AGREED between the parties, by and through their
undersigned counsel of record, that:
WHEREAS, to expedite discovery and permit discovery to proceed without the delay
occasioned by possible disputes regarding claims of confidentiality, the parties wish to produce
documents and things subject to the protective provisions set forth below;
WHEREAS, the parties anticipate that, given the nature of the claims and defenses in this
action, discovery will likely include highly proprietary and sensitive business information, the
disclosure of which poses a substantial risk of harm to the parties’ proprietary and financial interests,
including but not limited to (i) the operation and functioning of the parties’ manufacturing and
distribution systems; (ii) trade secret and business strategy information pertaining to the parties’
product lines and marketing efforts; (iii) sensitive data regarding customers, potential customers,
sales, and third-party business partners; and (iv) other proprietary technical or commercially sensitive
information that is not otherwise available to the public;

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WHEREAS, the parties believe that the Terms and Conditions set forth below should be
entered by a court order, as opposed to a private agreement between or among the parties, because the
terms herein will pertain solely to the production and use of discovery in this action, will set forth
procedures by which the parties can expeditiously resolve confidentiality or privilege-related disputes
before the Court, and will govern potential discovery from third parties who would not otherwise be
subject to a private agreement;
WHEREAS, the parties’ disclosure of information in this action is made in reliance on the
provisions of this Protective Order permitting the parties and third parties to designate documents,
deposition and other testimony, information, and things as “CONFIDENTIAL” or
“CONFIDENTIAL: ATTORNEYS’ EYES ONLY” as defined below, and thereby protect such
designated information from unauthorized use or disclosure;
NOW, THEREFORE, the parties hereby agree to the Terms and Conditions set forth below,
and entry by the Court of this Protective Order.
TERMS AND CONDITIONS
1.

The terms and conditions of this Protective Order shall be applicable to and shall

govern all information, documents and tangible things, regardless of medium or format, produced
during the course of discovery in this action, whether in response to a request, voluntarily, or
pursuant to a rule, order, or other requirement (“Discovery Materials”).
2.

“Confidential Information” as used herein means any information in any of the

Discovery Material that is designated as “CONFIDENTIAL” or “CONFIDENTIAL: ATTORNEYS’
EYES ONLY” by one or more of the parties to this action or a third party responding to a subpoena
served in this action (referred to as the “Designating Party”).
3.

Confidential Information shall not be used or disclosed for any purpose other than the

prosecution, defense, appeal or settlement of this action. Any use of such information for any other
purpose, or any disclosure of such information to anyone not authorized under this Protective Order,
is expressly prohibited and would constitute a material breach of this Order.

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4.

Any party to this action or third party that produces Discovery Materials in this action

may designate such material as “CONFIDENTIAL” which it believes, in good faith, contains
information that, if disclosed, would cause injury to its business or business relationships with others;
that contain trade secrets or other confidential and non-public research, development or commercial
information; that contain non-public personal information; or that contain other information for
which a good faith claim of the need for protection from disclosure can be made under the Federal
Rules of Civil Procedure or other applicable law.
5.

Any party to this action or third party that produces Discovery Materials in this action

may designate such material as “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” if it believes, in
good faith, that (i) the material contains or reflects confidential information that comprises highly
sensitive technical, business or research information regarding products or services, and (ii) the
information is so commercially sensitive that disclosure to the opposing party is likely to cause
competitive harm to the Designating Party.
6.

The Designating Party shall not designate as Confidential Information any documents

or things that are known by the Designating Party to be available to members of the general public.
7.

Hardcopy or electronic documents that any party or third party wishes to designate as

Confidential Information in this action shall be marked by placing the legend “CONFIDENTIAL” or
“CONFIDENTIAL: ATTORNEYS’ EYES ONLY” as applicable on each page of the document.
8.

Electronically stored information in any form (including embedded data and

metadata), whether oral, audio and/or visual (collectively, “Electronic Data”) that any party or third
party wishes to designate as Confidential Information in this action shall be marked by designating
the Electronic Data as “CONFIDENTIAL” or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” in
a cover letter accompanying the production of the Electronic Data. Where feasible, counsel for the
Producing Party shall also mark the disk, tape or other electronic media on which the Electronic Data
is produced with the appropriate designation. If a Party reduces “CONFIDENTIAL” or
“CONFIDENTIAL: ATTORNEYS’ EYES ONLY” Electronic Data to hardcopy form, it shall mark

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the hardcopy with the appropriate designation. Whenever any Confidential Information Electronic
Data is copied, all copies shall be marked with the appropriate designation.
9.

Deposition transcripts, or portions thereof, may be designated “CONFIDENTIAL” or

“CONFIDENTIAL: ATTORNEYS’ EYES ONLY” (a) during the deposition, in which case the
designated testimony shall be identified by page number in an index appearing at the end of the
transcript; or (b) after the conclusion of the deposition, within ten (10) days of receipt of the final
deposition transcript, by written notice to counsel of record for all parties. The entire deposition
transcript shall be treated as “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” for ten (10) days
after receipt of the final deposition transcript by counsel unless the Designating Party has earlier
indicated a different designation. The front page of any deposition containing Confidential
Information shall be marked by the court reporter as follows: “CONTAINS CONFIDENTIAL
INFORMATION.” The Designating Party shall have the right to have all persons except the
deponent and his or her counsel, counsel of record for the named parties, the court reporter, and such
other persons as are permitted under Paragraphs 10 and 11 below, excluded from a deposition, or any
portion thereof, as appropriate, before the taking therein of testimony that the Designating Party
designates as Confidential Information.
10.

Absent written consent from the Designating Party or unless otherwise directed by the

Court, and subject to the provisions herein, information designated as “CONFIDENTIAL” shall not
be provided, shown, made available, or communicated in any way to any person or entity with the
exception of:
a.

Outside attorneys for a Party receiving Discovery Materials (referred to as a
“Receiving Party”), and any staff, assistants, clerical employees, and
information technology employees working under the direct supervision of
such counsel;

b.

Officers and employees of a Receiving Party, and any person assisting such
officers and employees, where the review of such “CONFIDENTIAL”

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materials or information is reasonably necessary and in connection with the
prosecution, defense, appeal or settlement of this action;
c.

The Court and its staff in connection with the Court’s administration and
adjudication of this action;

d.

Any outside expert or consultant to whom it is necessary to disclose
Confidential Information for purposes of assisting in, or consulting with
respect to, this litigation and who have executed the Declaration of
Compliance attached hereto as Exhibit A; and

e.

Court reporters, interpreters, translators, copy services, graphic support
services, document imaging services, and database/coding services retained by
counsel, for the purpose of assisting in this action and who have executed the
attached Declaration of Compliance.

11.

Absent written consent from the Designating Party or unless otherwise directed by the

Court, and subject to the provisions herein, information designated as “CONFIDENTIAL:
ATTORNEYS’ EYES ONLY” shall not be provided, shown, made available, or communicated in
any way to any person or entity with the exception of:
a.

Outside attorneys working on this action for a Receiving Party, and any staff,
assistants, clerical employees, and information technology employees working
under the direct supervision of such counsel;

b.

The Court and its staff in connection with the Court’s administration and
adjudication of this action;

c.

Any outside expert or consultant to whom it is necessary to disclose
Confidential Information for purposes of assisting in, or consulting with
respect to, this litigation and who have executed the attached Declaration of
Compliance; and

d.

Court reporters, interpreters, translators, copy services, graphic support
services, document imaging services, and database/coding services retained by

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counsel, for the purpose of assisting in this action and who have executed the
attached Declaration of Compliance.
12.

Any person receiving Confidential Information or any Discovery Materials containing

such information, shall take reasonable care to ensure that the information is not communicated or
disclosed to anyone not authorized by Paragraphs 10 and 11 above to receive such information.
13.

Counsel for each party shall maintain a file containing the Declarations of Compliance

(in the form of Exhibit A) executed by each person to whom disclosure of Confidential Information is
made by such counsel and who is required to sign such Declaration pursuant to Paragraphs 10 and 11
above.
14.

The designation of any document as “CONFIDENTIAL” or “CONFIDENTIAL:

ATTORNEYS’ EYES ONLY” shall not preclude any party from showing that document to any
person (a) who appears as the author or as a recipient on the face of the document; (b) who has been
identified by the Designating Party as having been provided with the document; (c) who is a current
employee or representative of the Designating Party called as a witness for deposition, hearing or trial
in this action; or (d) who is a former employee or representative of the Designating Party called as a
witness for deposition, hearing, or trial in this action and who had access to the document at the time
employed by the Designating Party, if such access is apparent from the face of the document or
confirmed by testimony.
15.

Nothing in this Protective Order shall be deemed to preclude legal counsel for a

Receiving Party from having high-level discussions with their client about the legal implications of
any Discovery Material designated as “CONFIDENTIAL: ATTORNEYS’ EYES ONLY.”
16.

Nothing in this Protective Order shall affect the right of any Designating Party to

maintain its own documents as it chooses, or to disclose or use for any purpose the documents or
information produced and designated by it as “CONFIDENTIAL” or “CONFIDENTIAL:
ATTORNEYS’ EYES ONLY,” subject to the right of a party to seek, where appropriate, removal of
the “CONFIDENTIAL” or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” designation of such
documents or information as a result of such disclosure or use.

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17.

Nothing in this Protective Order shall limit or affect the rights of any party to use or

disclose any information or thing that has not been obtained through, or derived as a result of, this
action.
18.

Compliance with this Protective Order shall not be construed in any way as an

admission or agreement by any party that the designated disclosure constitutes or contains any trade
secret or confidential information of any other party or witness. No party to this action shall be
obligated to challenge the propriety of any “CONFIDENTIAL” or “CONFIDENTIAL:
ATTORNEYS’ EYES ONLY” designation by any other party or witness, and failure to do so shall
not constitute a waiver or in any way preclude a subsequent challenge in this or any other action to
the propriety of such designations.
19.

Any party objecting to the designation of any information as “CONFIDENTIAL” or

“CONFIDENTIAL: ATTORNEYS’ EYES ONLY” must give counsel for the Designating Party
written notice of the objection and its reasons for the objection, and the parties shall attempt in good
faith to resolve their differences. Failing resolution, the party challenging the designation may file a
motion with the Court requesting that the challenged designations be changed. In any such motion,
the Designating Party shall bear the burden of proving that the challenged Discovery Materials were
appropriately designated pursuant to this Protective Order. Until the Court rules on the motion, the
material shall be treated as designated in accordance with this Order.
20.

Production of any Discovery Materials without a designation of “CONFIDENTIAL”

or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” shall not in and of itself be deemed a waiver
of any party’s claim of confidentiality as to such matter. The initial failure to designate Discovery
Materials in accordance with this Protective Order shall not preclude any party or third party, at a
later date, from designating such materials “CONFIDENTIAL” or “CONFIDENTIAL:
ATTORNEYS’ EYES ONLY.” A party or third party may, by written notice to counsel of record for
the Receiving Party or Parties, designate previously produced Discovery Materials as Confidential
Information. Upon receipt of such notice, the Receiving Party shall thereafter treat the Discovery
Materials in accordance with the new designation, shall restrict the disclosure or use of such material

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to those persons qualified under this Protective Order, and, if such material has previously been
disclosed to persons not qualified under this Protective Order, shall take reasonable steps to obtain all
such previously disclosed Confidential Information and advise such persons of the designation of
confidentiality. If the Discovery Materials were originally produced in hard-copy format, the
Designating Party shall supply, at its own cost, replacement pages containing the new designation of
confidentiality.
21.

The inadvertent production or disclosure of any document or communication that is

subject to an attorney-client, attorney work product, or other privilege will not be deemed a waiver of
such privilege, provided that the party entitled to assert such privilege notifies the parties to whom
such inadvertent disclosure or production was made promptly upon discovery of such inadvertent
disclosure.
22.

Within 14 days of receiving the notice of inadvertent production, the Receiving Party

may move the Court for an order that such Discovery Material is not protected from disclosure by
any privilege, law, or doctrine and may submit the Discovery Material at issue to the Court for filing
under seal in connection with that motion. In any such motion, the Designating Party shall bear the
burden of proving that the challenged Discovery Materials are subject to an attorney-client, attorney
work product, or other privilege. The Receiving Party shall not assert waiver due to the inadvertent
production as a ground for such motion. While the motion is pending, the Receiving Party shall not
use or disseminate the challenged Discovery Material for any purpose other than such motion.
23.

In the event that either (a) the party who has been notified of an inadvertent production

of protected Discovery Materials declines to file a motion with the Court challenging the claim that
the Discovery Materials are protected from disclosure, or (b) the Court determines that the Discovery
Materials are protected from disclosure, then the Receiving Party shall: (i) promptly destroy the
Discovery Material (or redact the protected portions of the Discovery Material in the event that the
entire Discovery Material is not claimed or found to be protected from disclosure) and all copies
thereof; (ii) permanently delete any electronic versions of the Discovery Material from any data
source, or any database it maintains; (iii) retrieve all paper copies of the Discovery Material provided

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to any third parties, including experts and consultants; (iv) retrieve from third parties all electronic
copies contained on physical storage media where practicable, or if not, direct that any such
electronic versions be permanently deleted; (v) destroy portions of any notes that reveal the substance
of the protected information; and (vi) make no further use of the protected information. In the event
that only a portion of the Discovery Material is claimed or found to be protected from disclosure, the
party claiming protection shall produce a new version of that material with such information
redacted.
24.

In the event that a party wishes to use any Confidential Information, or any document

containing or making reference to the contents of such information, in any pleading or document filed
with the Court, such pleading or document shall be filed under seal pursuant to the Local Civil Rules.
The Clerk of the Court is directed to maintain under seal all documents and information filed under
seal with the Court in connection with this litigation, unless and until such time as the Court orders
otherwise or denies permission to file under seal.
25.

A courtesy copy of any document that is filed under seal and that is specifically

intended for review by the Court may be hand delivered to the Court without waiving or diminishing
in any way the protections of this Protective Order. Any such courtesy copy shall be prominently
marked “CONFIDENTIAL – FILED UNDER SEAL AND CONTAINS INFORMATION SUBJECT
TO A PROTECTIVE ORDER.”
26.

The disclosure of Confidential Information covered by this Protective Order, whether

pursuant to compelled discovery or otherwise, shall not constitute a waiver of any trade secret or any
intellectual property, proprietary, or other rights to or in such information. If any person or entity
receiving Confidential Information is subpoenaed in another action or proceeding, served with a
document demand, or otherwise requested to provide material covered by this Protective Order, and
such subpoena, document demand, or request seeks material which was produced or designated as
“CONFIDENTIAL” or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY,” the person receiving the
subpoena, document demand, or request shall give written notice promptly (no more than five (5)
business days after receipt) to counsel for the Designating Party and shall, to the extent permitted by

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law, withhold production of the material until any dispute relating to the production of such material
is resolved.
27.

Unless otherwise agreed to in writing by an attorney of record for the Designating

Party, within ninety days of the final adjudication (including any appellate proceedings) or other final
disposition of this action, all persons listed in Paragraphs 10 and 11 above, with the exception of
Paragraphs 10(c) and 11(b), who received any materials containing information designated as
“CONFIDENTIAL” or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” shall, at the election of
the Designating Party, either (a) assemble and return all Confidential materials in its possession,
including all copies thereof, to the Designating Party, or (b) certify in writing that all such material
has been destroyed. If returned, the Designating Party shall acknowledge in writing the receipt of
any returned material. Counsel of record shall make reasonable efforts to ensure that any experts,
consultants, and outside legal vendors it has retained abide by this provision.
28.

Notwithstanding the foregoing paragraph, outside counsel for the parties shall be

entitled to retain court papers, deposition and trial transcripts, attorney work product, and all exhibits
to any of the foregoing that reflect or contain Confidential Information, provided that such outside
counsel, and employees of such outside counsel, shall maintain the confidentiality thereof and shall
not disclose any such information to any person except pursuant to Paragraph 26 or the written
consent of the Designating Party.
29.

Nothing in this Protective Order shall be deemed to limit, prejudice, or waive any right

of any party or person (a) to resist or compel discovery with respect to, or to seek to obtain additional
or different protection for, material claimed to be protected work product or privileged under
applicable law, material as to which a party claims a legal obligation not to disclose, or material not
required to be provided pursuant to applicable law; (b) to seek to modify or obtain relief from any
aspect of this Protective Order; (c) to object to the use, relevance or admissibility at trial or otherwise
of any material, whether or not designated in whole or in part as Confidential Information governed
by this Protective Order; or (d) otherwise to require that discovery be conducted according to
governing laws and rules.

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30.

This Protective Order shall not prevent a party from applying to the Court for further

or additional protective orders or to modify the provisions of this Order.
31.

The undersigned will treat Discovery Materials that are designated by a third party as

Confidential Information in accordance with the terms and conditions of this Protective Order
regardless of whether the third party is or becomes a signatory to the Order.
32.

Any party serving a subpoena in this action on a non-party shall include with the

subpoena a copy of this Protective Order.
33.

The confidentiality obligations imposed by this Protective Order, and this Court’s

jurisdiction over disputes relating to this Protective Order, shall survive termination of this action and
shall remain in effect unless otherwise expressly ordered by the Court.
*

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*

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*

EXHIBIT A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION
G.P.P., INC. d/b/a GUARDIAN INNOVATIVE
SOLUTIONS,

)
)
)
Plaintiff,
)
)
v.
)
)
GUARDIAN PROTECTION PRODUCTS, INC., )
)
Defendant.
)

CASE NO.: 1:15-cv-00321-SKO
DECLARATION OF COMPLIANCE
WITH PROTECTIVE ORDER

I hereby certify my understanding that Discovery Material designated as “CONFIDENTIAL”
or “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” is being provided to me pursuant to the terms
and restrictions of the Protective Order entered in this action by the United States District Court for
the Eastern District of California on ______________ ___, 2016 (the “Protective Order”). I have
read and understand the terms of the Protective Order and I agree to be fully bound by them. I
understand that any violations of the terms and conditions of the Protective Order may be regarded as
contempt of Court. I hereby submit to the jurisdiction of the United States District Court for the
Eastern District of California for the purposes of enforcement of this Protective Order.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and
correct. Executed this ____ day of ____________________, ______.

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STIPULATED AND AGREED TO BY ALL PARTIES:
Dated: January 11, 2016

s/ Dylan J. Liddiard
Dylan J. Liddiard
Attorneys for Plaintiff

s/ Gary A. Collis
(as authorized on 01/11/2016)
Gary A. Collis
Attorneys for Defendant

ORDER
The parties' stipulated protective order is approved. All requests for sealing of confidential
materials must comply with Local Rule 141 as confidential materials will not automatically be subject
to sealing.
Accordingly, IT IS HEREBY ORDERED that the above protective order is issued.

IT IS SO ORDERED.
Dated:

January 13, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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