Smith v. Allmax Nutrition, Inc. et al

Filing 36

Order re stipulated protective order, signed by Magistrate Judge Stanley A. Boone on 2/25/2016. (Rosales, O)

1
2
3
4
5
6
7

DURIE TANGRI LLP
RAGESH K. TANGRI (SBN 159477)
[e-mail]
MICHAEL H. PAGE (SBN 154913)
[e-mail]
JOSHUA H. LERNER (SBN 220755)
[e-mail]
MICHAEL A. FELDMAN (SBN 295780)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415-236-6300

8

Attorneys for Defendant
HBS INTERNATIONAL CORP.

9

[Additional counsel on signature page]

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12

FRESNO DIVISION

13 TODD SMITH, individually and on behalf of all
others similarly situated,
14
Plaintiff,
15
v.
16
ALLMAX NUTRITION, et al.,
17
Defendants.
18
19
20
21

22
23
24
25
26
27
28

Case No. 1:15-cv-00744-SAB
ORDER RE STIPULATED PROTECTIVE
ORDER

1

1.

2

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential,

3

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

4

any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby

5

stipulate to and petition the court to enter the following Stipulated Protective Order. The parties

6

acknowledge that this Order does not confer blanket protections on all disclosures or responses to

7

discovery and that the protection it affords from public disclosure and use extends only to the limited

8

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

9

parties further acknowledge, as set forth in Section 13.3, below, that this Stipulated Protective Order does

10

not entitle them to file confidential information under seal; Civil Local Rule 141 sets forth the procedures

11

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

12

to file material under seal.

13

2.

14

DEFINITIONS
2.1.

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

15 items under this Order.
16

2.2.

―CONFIDENTIAL‖ Information or Items: information (regardless of how it is generated,

17

stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure

18

26(c).

19
20
21

2.3.

Counsel (without qualifier): Outside Counsel and House Counsel (as well as their support

2.4.

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

staff).

22 produces in disclosures or in responses to discovery as ―CONFIDENTIAL,‖ ―HIGHLY
23

CONFIDENITAL – ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE

24

ATTORNEY RESTRICTED – INSPECTION ONLY‖

25

2.5.

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

26

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

27

transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery

28

in this matter.

1
2
3

2.6.

litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant
in this action.

4
5
6
7

8
9

2.7.

Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify
for protection under Federal Rule of Civil Procedure 26(c) and are extremely confidential and/or
sensitive in nature and the Producing Party reasonably believes that the disclosure of such material is
likely to cause economic harm or significant competitive disadvantage to the Producing Party.
The Parties agree that the following information, if non-public, shall be presumed to merit at least
the ―HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY‖ Designation:

12

a.

17

c.

reports, and sale margins);
d.

22

e.

engineering documents, testing documents, research and development, employee information;
f.

any other category of non-public information of similar competitive and business

sensitivity or is likely to cause harm to the competitive position of the Producing Party.

26

28

customer lists; and

g.

24

27

business plans, sales or marketing forecasts or plans, information or data relating

to future products not yet commercially released and/or strategy plans, product development information,

23

25

commercial agreements, settlement agreements or settlement communications, the

disclosure of which is likely to cause harm to the competitive position of the Producing Party;

20
21

financial and sales information (including without limitation profitability reports or

estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, web traffic, sales

18
19

commercially sensitive competitive information, including, without limitation,

information obtained from a non-party pursuant to a current Nondisclosure Agreement (―NDA‖);

15
16

trade secrets and technical data/information;

b.

13
14

―HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY‖ and ―HIGHLY

CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information or

10
11

Expert: a person with specialized knowledge or experience in a matter pertinent to the

2.8.

House Counsel: attorneys who are employees of a Party to this action. House Counsel

does not include Outside Counsel or any other outside counsel.
///
2
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2

2.9.

not named as a Party to this action.

3
4
5

2.10.

or advise a party to this action.
2.11.

2.12.

12
13

2.13.

16

retrieving data in any form or medium) and their employees and subcontractors. This also includes court
reporters, professional jury or trial consultants, mock jurors, and other such consultants.
2.14.

19
20
21
22
23
24
25
26
27
28

Protected Material: any Disclosure or Discovery Material that is designated as

―CONFIDENTIAL,‖ ―HIGHLY CONFIDENITAL – ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY.‖

17
18

Professional Vendors: persons or entities that provide litigation support services (e.g.,

photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or

14
15

Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in

this action.

10
11

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel (and their support staffs).

8
9

Outside Counsel: attorneys who are not employees of a Party to this action but are

retained to represent or advise a party to this action or are affiliated with a law firm retained to represent

6
7

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

2.15.

Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing

Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material (as

defined above), but also: (1) any information copied or extracted from Protected Material; (2) all copies,
excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material. However, the protections
conferred by this Stipulation and Order do not cover the following information: (a) any information that
is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public
domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this
Order or other unauthorized act or omission, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by
3
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4

the Receiving Party after the disclosure from a source who obtained the information lawfully and under
no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be
governed by a separate agreement or order.
4.

5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order

shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise
directs. Final disposition shall be deemed to be the later of: (1) dismissal of all claims and defenses in
this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion
of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing
any motions or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Designating Material for Protection. Each Party or Non-Party that designates information

or items for protection under this Order must take care to limit any such designation to specific material
that qualifies under the appropriate standards. The Designating Party must designate for protection only
those parts of material, documents, items, or oral or written communications that qualify – so that other
portions of the material, documents, items, or communications for which protection is not warranted are
not swept unjustifiably within the ambit of this Order.
5.2

Manner and Timing of Designations. Except as otherwise provided in this Order (see,

e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
Discovery Material that qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Order requires:
a.

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

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix
the legend ―CONFIDENTIAL,‖ ―HIGHLY CONFIDENITAL – ATTORNEYS’ EYES ONLY,‖ or
―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ to
each page that contains protected material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
4
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for inspection need
not designate them for protection until after the inspecting Party has indicated which material 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,‖ ―HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY
RESTRICTED – INSPECTION ONLY.‖ 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,‖ ―HIGHLY CONFIDENITAL – ATTORNEYS’ EYES
ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION
ONLY‖ legend to each page that contains Protected Material. If only a portion or portions 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 deposition or in other pretrial or trial proceedings, that the

Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding,
all protected testimony or that the Designating Party send written notice that the relevant portions of the
testimony are so designated within ten (10) business days of receipt of the final certified copy of the
transcript of the testimony. All information disclosed during a deposition shall be deemed
―CONFIDENTIAL‖ until the time within which it may be appropriately designated as provided for
herein has passed. Any Protected Material that is used in the taking of a deposition shall remain subject
to the provisions of this Order, along with the transcript pages of the deposition testimony dealing with
such Protected Material. In such cases, the court reporter shall be informed of this Order and shall be
required to operate in a manner consistent with this Order. In the event the deposition is videotaped or
recorded by other video means, the original and all copies of the videotape or other video media shall be
marked by the video technician to indicate that the contents of the videotape or other video media are
subject to this Order (e.g., by including a label on the videotape or other video media which contains the
appropriate confidentiality designation).
5
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

c.

tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
containers in which the information or item is stored the legend ―CONFIDENTIAL,‖ ―HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE
ATTORNEY RESTRICTED – INSPECTION ONLY.‖ If only a portion or portions of the information
or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s).

8
9
10

d.

13
14
15

Receiving Party of the designation of such information in writing.
5.3

18
19
20
21
22
23
24
25
26
27
28

Inadvertent Failures to Designate. If timely corrected, an 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. 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.

16
17

for information not reduced to any documentary, tangible, or physical form, or

which cannot be conveniently designated as set forth above, that the Producing Party must inform the

11
12

for information produced in some form other than documentary and for any other

5.4

No Waiver of Privilege. Pursuant and in addition to Rule 502 of the Federal Rules of

Evidence, nothing herein constitutes or may be interpreted as a waiver by any Party or any applicable
privilege or immunity, including, but not limited to, the attorney-client privilege, the work-product
doctrine, the common-interest privilege, and the joint-defense privilege—nor shall the inadvertent
production of privileged information be deemed a waiver of any applicable privilege or immunity
concerning any such information or the subject matter thereof if a request for the return of the
information is made promptly after the Producing Party learns of its inadvertent production. Pursuant and
in addition to Rule 26(b)(5)(B), upon written request by an inadvertently Producing Party, the Receiving
Party shall return all copies of the document and not use the document or the information contained
therein for any purpose until obtaining an appropriate order of the Court, even if the Receiving Party
disagrees that a document containing the information is privileged.
///
///
6
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a
significant disruption or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the original designation is
disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution process by

providing written notice of each designation it is challenging and describing the basis for each challenge.
To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the
challenge to confidentiality is being made in accordance with this specific paragraph of the Protective
Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by
conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within
14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its
belief that the confidentiality designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed
to the next stage of the challenge process only if it has engaged in this meet and confer process first or
establishes that the Designating Party is unwilling to participate in the meet and confer process in a
timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court intervention,

the Challenging Party may file and serve a motion to remove the confidentiality designation within 21
days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer requirements
imposed in the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Challenging Party.
Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary
7
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4

expenses and burdens on other parties) may expose the Challenging Party to sanctions. All parties shall
continue to afford the material in question the level of protection to which it is entitled under the
Producing Party’s designation until the court rules on the challenge.
7.

5
6
7

8
9
10
11
12

7.1

defending, or attempting to settle this litigation. A Receiving Party may not use Protected Material
disclosed or produced in this case for the purposes of competition with the Producing Party, other
pending litigation, instituting new litigation, or any other purpose except the prosecution, defense, or
settlement of this case. Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the litigation has been terminated, a Receiving Party must
comply with the provisions of section 14 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.

15
16
17

7.2

20
21
22
23
24
25
26
27
28

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:

18
19

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

produced by another Party or by a Non-Party in connection with this case only for prosecuting,

13
14

ACCESS TO AND USE OF PROTECTED MATERIAL

a.

the Receiving Party’s Outside Counsel in this action, as well as employees of said

Outside Counsel to whom it is reasonably necessary to disclose the information for this litigation and
who have signed the ―Acknowledgment and Agreement to Be Bound‖ that is attached hereto as Exhibit
A;
b.

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

Party to whom disclosure is reasonably necessary for this litigation and who have signed the
―Acknowledgment and Agreement to Be Bound‖ (Exhibit A);
c.

no more than five (5) Experts (as defined in this Order) of the Receiving Party to

whom disclosure is reasonably necessary for this litigation and who have signed the ―Acknowledgment
and Agreement to Be Bound‖ (Exhibit A);
d.

the court and its personnel;
8

[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3

e.

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the ―Acknowledgment and Agreement to Be Bound‖ (Exhibit A);

4
5
6
7

8
9

f.

otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order.;
or
g.

h.

16
17
18
19

7.3

22
23

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 ―HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY
RESTRICTED – INSPECTION ONLY‖ only to:
a.

26

who have signed the ―Acknowledgment and Agreement to Be Bound‖ that is attached hereto as Exhibit
A;
b.

no more than four (4) Experts (as defined in this Order) of the Receiving Party to

whom disclosure is reasonably necessary for this litigation and who have signed the ―Acknowledgment
and Agreement to Be Bound‖ (Exhibit A);

27
28

the Receiving Party’s Outside Counsel in this action, as well as employees of said

Outside Counsel to whom it is reasonably necessary to disclose the information for this litigation and

24
25

Disclosure of ―HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY‖ and

―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖

20
21

any persons, and their personnel, selected by the Parties or appointed by the Court

to hold a mediation or settlement conference.

14
15

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

other person who otherwise possessed or knew the information; or

12
13

during their depositions, witnesses in the action to whom disclosure is reasonably

necessary and who have signed the ―Acknowledgment and Agreement to Be Bound‖ (Exhibit A), unless

10
11

court reporters and their staff, professional jury or trial consultants, mock jurors,

c.

the court and its personnel;

///
9
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3

d.

and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the ―Acknowledgment and Agreement to Be Bound‖ (Exhibit A);

4
5
6
7

8

e.

otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order.;
f.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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

other person who otherwise possessed or knew the information; or

11
12

during their depositions, witnesses in the action to whom disclosure is reasonably

necessary and who have signed the ―Acknowledgment and Agreement to Be Bound‖ (Exhibit A), unless

9
10

court reporters and their staff, professional jury or trial consultants, mock jurors,

g.

any persons, and their personnel, selected by the Parties or appointed by the Court

to hold a mediation or settlement conference.
7.4

Inspection of ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED –

INSPECTION ONLY‖ Information or Items. Information and documents designated as ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ shall be made
available for inspection and review subject to the following provisions, unless otherwise ordered by the
Court or agreed upon by the Producing Party and Receiving Party:
a.

All ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED –

INSPECTION ONLY‖ Information shall be made available by the Producing Party to the Receiving
Party’s Outside Counsel and/or pre-approved experts in a secure room on a secured non-networked
computer at a secure site at the Producing Party’s discretion, either (i) an office of its Outside Counsel or
(ii) at another location mutually agreed by the Parties;
b.

Use or possession of any input/output device (e.g., USB memory sticks, cameras

or any camera-enabled device, CDs, floppy disks, portable hard drives, laptops, mobile devices that are
capable of input/output functionality, etc.) is prohibited while accessing the inspection computer. All
persons entering the secure room containing the inspection computer must agree to submit to reasonable
security measures to ensure they are not carrying any prohibited items before they will be given access to
the secured room containing the inspection computer.
10
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5

c.

business hours (e.g., 9am to 5pm), unless otherwise agreed by the parties, and upon reasonable notice to
the Producing Party, which shall not be less than 5 business days in advance of the requested inspection
for initial inspections, and not less than 3 business days in advance of the requested inspection for
subsequent inspections.

6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The inspection computer will be made available for inspection during regular

d.

The Receiving Party’s Outside Counsel and/or experts shall be entitled to take

notes relating to the ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED –
INSPECTION ONLY‖ Information during inspection. Any such notes shall be treated as ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information. All
such notes will be taken on bound (spiral or other type of permanently bound) notebooks, and the
Receiving Party may not bring loose paper into the secure room. The Receiving Party’s Outside
Counsel and/or experts shall be permitted to take such notebooks into and out of the secure room, but at
all times such notes shall be subject to the provisions governing printed copies of ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information in
7.4(f) below.
e.

The inspection computer shall be equipped to allow the Receiving Party, during

inspection, to print copies of the ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED
– INSPECTION ONLY‖ Information to PDF files that will be kept electronically in folders on the
inspection computer. The Receiving Party may request paper copies of limited portions of ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information that
are reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or
for deposition or trial, but shall not request paper copies for the purposes of reviewing the ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information other
than electronically as set forth in paragraph 7.4(c) in the first instance. Within seven (7) business days
after a day in which the Receiving Party prints any portions of ―HIGHLY CONFIDENTIAL – OUTSIDE
ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information to PDF in such manner, the
Producing Party shall either (i) provide one copyset of such printed portions to the Receiving Party in
paper form, including bates numbers and the label ―HIGHLY CONFIDENTIAL – OUTSIDE
11
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information or (ii) inform the Receiving Party in
writing that it objects that the printed portions are excessive and/or not reasonably necessary for the
preparation of court filings, pleadings, expert reports, or other papers, or for deposition or trial. To avoid
ambiguity as to whether an objection has been made, the written notice must recite that the objection is
being made in accordance with this specific paragraph of the Protective Order. If, after meeting and
conferring, the Producing Party and the Receiving Party cannot resolve the objection, the Receiving
Party shall be entitled to seek a Court resolution within ten (10) business days from the date of the meet
and confer as to whether the printed ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY
RESTRICTED – INSPECTION ONLY‖ Information in question is excessive and/or not reasonably
necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for deposition
or trial. The burden of persuasion in any such proceeding shall be on the Producing Party.
f.

Printed copies of ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY

RESTRICTED – INSPECTION ONLY‖ Information may be reviewed by Outside Counsel for the
Receiving Party or the Receiving Party’s independent consultants or experts, and such review may occur
at the offices of Outside Counsel of the Receiving Party or at the offices of the Receiving Party’s
approved independent consultants or experts. Printed copies of ―HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information may not be removed from
the aforementioned locations, except that: (A) copies may be made for and used in court filings and
proceedings, expert reports, and depositions of persons or entities permitted to access ―HIGHLY
CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information of
the Producing Party if necessary; and (B) Outside Counsel of the Receiving Party, and/or the Receiving
Party’s independent consultants or experts may transfer printed copies of the Producing Party’s
―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖
Information between Outside Counsel of the Receiving Party’s own offices (via overnight delivery with
signature required or hand delivery with signature required), or between any other locations where such
printed copies of ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED –
INSPECTION ONLY‖ Information may be viewed pursuant to this paragraph, as reasonably necessary
for preparation of the Receiving Party’s case. Any such printed copies shall be maintained at all times in
12
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6

a locked and secure location, except while in transit or being reviewed consistent with this paragraph.
Printed copies of ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED –
INSPECTION ONLY‖ Information shall not be converted to electronic form by the Receiving Party and
may not be scanned using optical character recognition (―OCR‖), except as may be necessary for use in
court filings and proceedings, and expert reports.
///

7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

g.

All copies of any portion of ―HIGHLY CONFIDENTIAL – OUTSIDE

ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information in whatever form shall be securely
destroyed if they are no longer in use. Copies of ―HIGHLY CONFIDENTIAL – OUTSIDE
ATTORNEY RESTRICTED – INSPECTION ONLY‖ Information that are marked as deposition
exhibits shall not be provided to the Court Reporter or attached to deposition transcripts. Rather, the
deposition record will identify the exhibit by its production numbers.
8.

NOTICE OF DISCLOSURE
8.1

Prior to disclosing any Protected Material to any person described in subparagraphs 7.2(c)

or 7.3(b) (―Person‖), the party seeking to disclose such information shall provide the Producing Party or
Parties with written notice that includes: (i) the name and contact address of the Person; (ii) curriculum
vitae and the present employer and title of the Person, (iii) employment history for the past ten years, and
(iv) a listing of cases in which the Person has testified as an expert at trial or by deposition within the
preceding five years and the parties to those litigations, further identifying for whom the work was done.
8.2

Within ten (10) calendar days of receipt of the disclosure of the Person, the Producing

Party or Parties may object in writing to the Person for good cause. Any such objection must set forth in
detail the grounds on which it is based. The objecting Party’s consent to a Person shall not be
unreasonably withheld. In the absence of an objection at the end of the ten (10) calendar day period, the
person shall be deemed approved under this Order. There shall be no disclosure of Protected Material to
the Person prior to expiration of this ten (10) calendar day period. If the Producing Party objects to
disclosure to the Person within such ten (10) calendar day period, the parties shall meet and confer via
telephone or in person within three (3) business days following the objection and attempt in good faith to
resolve the dispute on an informal basis. If the dispute is not resolved, the Party objecting to the
13
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4

disclosure will have five business (5) days from the date of the meet and confer to seek relief from the
Court. If relief is not sought from the Court within that time, the objection shall be deemed withdrawn.
If relief is sought, Protected Materials of the objecting Party shall not be disclosed to the Person in
question until the objection is resolved by the Court.

5
6
7

8.3

that the proposed Person will, advertently or inadvertently, use or disclose Protected Materials in a way
or ways that are inconsistent with the provisions contained in this Order.

8
9

8.4

12
13
14

Prior to receiving any Protected Material under this Order, the Person must execute a copy

of the ―Agreement to Be Bound by Protective Order‖ (Exhibit A hereto).

10
11

For purposes of this section, ―good cause‖ shall include an objectively reasonable concern

8.5

A Party who has not previously objected to the disclosure of Protected Material to a

Person or whose objection has been resolved with respect to the previously-produced information shall
not be precluded from raising an objection to a Person at a later time with respect to materials or
information that are produced or discovered after the time for objection to such a Person has expired.
Any such objection shall be handled in accordance with the provisions contained in this Section.

15
9.
16
17
18
19
20

If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as ―CONFIDENTIAL,‖ ―HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE
ATTORNEY RESTRICTED – INSPECTION ONLY‖ that Party must:

21
22

9.1

25

9.2

28

promptly notify in writing the party who caused the subpoena or order to issue in the other

litigation that some or all of the material covered by the subpoena or order is subject to this Protective
Order. Such notification shall include a copy of this Stipulated Protective Order; and

26
27

promptly notify in writing the Designating Party. Such notification shall include a copy of

the subpoena or court order;

23
24

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

9.3

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

Designating Party whose Protected Material may be affected.
///
14
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

8

If the Designating Party timely seeks a protective order, the Party served with the subpoena or
court order shall not produce any information designated in this action as ―CONFIDENTIAL,‖
―HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,‖ or ―HIGHLY CONFIDENTIAL –
OUTSIDE ATTORNEY RESTRICTED – INSPECTION ONLY‖ 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.

9
10.
10
11
12
13
14
15
16
17
18
19

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
10.1

action and designated as ―CONFIDENTIAL,‖ ―HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,‖ or ―HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEY RESTRICTED – INSPECTION
ONLY.‖ Such information produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be construed as
prohibiting a Non-Party from seeking additional protections.
10.2

Party not to produce the Non-Party’s confidential information, then the Party shall:
10.2.1 promptly notify in writing the Requesting Party and the Non-Party that some or all
of the information requested is subject to a confidentiality agreement with a Non-Party;

22
23
24

10.2.2 promptly provide the Non-Party with a copy of the Stipulated Protective Order in
this litigation, the relevant discovery request(s), and a reasonably specific description of the information
requested; and

25
26
27
28

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-

20
21

The terms of this Order are applicable to information produced by a Non-Party in this

10.2.3 make the information requested available for inspection by the Non-Party.
10.3

If the Non-Party fails to object or 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
15
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5

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.
11.

6
7

8
9
10
11
12

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material

to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving
Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)
use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such
person or persons to execute the ―Acknowledgment and Agreement to Be Bound‖ that is attached hereto
as Exhibit A.

13
12.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are
those set forth in Federal Rule of Civil Procedure 26(b)(5)(B) (in addition to any requirements imposed
by California law).
13.

MISCELLANEOUS
13.1

Right to Further Relief. Nothing in this Order abridges the right of any person to seek its

modification by the court in the future.
13.2

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 disclosing or producing any information or
item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any
right to object on any ground to use in evidence of any of the material covered by this Protective Order.
13.3

Filing Protected Material. Without written permission from the Designating Party or a

court order secured after appropriate notice to all interested persons, a Party may not file in the public
record in this action any Protected Material. A Party that seeks to file under seal any Protected Material
16
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1
2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18

must comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to a
court order authorizing the sealing of the specific Protected Material at issue.
14.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, 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 Producing Party
(and, if not the same person or entity, to the Designating Party) by the 60 day deadline that: (1) identifies
(by category, where appropriate) all the Protected Material that was returned or destroyed; and (2)
affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any
other format reproducing or capturing any of the Protected Material. Notwithstanding this provision,
Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
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 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL.

19
Dated: February 25, 2016

BARBAT, MANSOUR & SUCIU PLLC

20
21

By:

/s/ Nick Suciu (as authorized on February 25, 2016)
NICK SUCIU

22
23
24

Nick Suciu , PHV
Barbat, Mansour & Suciu PLLC
434 West Alexandrine, #101
Detroit, MI 48201
Email: [e-mail]

25
26
27

Joseph J. Siprut
Siprut PC
17 N. State Street, Suite 1600
Chicago, IL 60616
Email: [e-mail]

28
Tina Wolfson
17
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB

1

Ahdoot & Wolfson, P.C.
1016 Palm Avenue
West Hollywood, CA 90069
Email: [e-mail]

2
3

Attorneys for Plaintiff
TODD SMITH

4
5

Dated: February 25, 2016

DURIE TANGRI LLP

6
By:

/s/ Michael A. Feldman
MICHAEL A. FELDMAN

7

8

Attorneys for Defendant
HBS INTERNATIONAL CORP.

9
10
ORDER
11

Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that:

12

1.

The stipulated protective order is entered in this action;

2.

13

The parties are advised that pursuant to the Local Rules of the United States District

14

Court, Eastern District of California, any documents which are to be filed under seal

15

will require a written request which complies with Local Rule 141; and

16

3.

17

The party making a request to file documents under seal shall be required to show
good cause for documents attached to a nondispositive motion or compelling reasons

18

for documents attached to a dispositive motion. Pintos v. Pacific Creditors Ass’n,

19

605 F.3d 665, 677-78 (9th Cir. 2009).

20
21
22
23

IT IS SO ORDERED.
Dated:

February 25, 2016
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
18
[PROPOSED] STIPULATED PROTECTIVE ORDER / CASE NO. 1:15-CV-00744-AWI-SAB