The Sherwin-Williams Company v. Courtesy Oldsmobile-Cadillac, Inc., et al.

Filing 46

PROTECTIVE ORDER, signed by Magistrate Judge Michael J. Seng on 05/25/2016. (Yu, L)

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McCORMICK BARSTOW, LLP
Gregory S. Mason
[e-mail]
7647 N. Fresno Street
Fresno, CA 93720
Telephone: [phone]
Facsimile: [phone]
YOUNG BASILE HANLON & MACFARLANE, PC
George S. Fish (P51298)
[e-mail]
3001 West Big Beaver Road, Suite 624
Troy, MI 48084
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
The Sherwin-Williams Company,
d/b/a Sherwin-Williams Automotive Finishes

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
) Case No.: 1:15-CV-01137---MJS
THE SHERWIN-WILLIAMS
)
COMPANY, d/b/a SHERWINWILLIAMS AUTOMOTIVE FINISHES, )
)
PROTECTIVE ORDER
)
Plaintiff,
)
)
vs.
)
)
COURTESY OLDSMOBILECADILLAC, INC. AND BEN WELLS, )
)
)
Defendants.
)
)
)

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This matter comes before the Court upon the consent of the parties in accordance

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with L.R. 141.1 and L.R. 143 to provide protection to and to prevent disclosures of

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certain information and documents which are deemed to contain confidential and/or

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highly confidential/proprietary information by one or more of the parties consisting
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Protective Order
1:15-CV-01137-MJS

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generally of trade secrets, financial and business planning information, or other highly

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confidential research, development, or commercial information, the disclosure of which

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could cause the producing party competitive harm. The Court is fully advised in the

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premises and finds entry of this Order appropriate under the circumstances. Accordingly,

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IT IS HEREBY ORDERED:

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1.

Restrictions on Disclosures of Information Designated Confidential.

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Until further Order of this Court, no document, or copy thereof (or any contents, portions,

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summaries, digests, compilations or extracts thereof), produced pursuant to FRCP 26, in

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response to FRCP 33 Interrogatories, FRCP 34 Requests For Production, or by any non-

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party in response to a party subpoena, which is designated “Confidential,” shall be

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disclosed in any way, directly or indirectly, in any form, to anyone other than in

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connection with this case, and then only to the following persons:

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a.

the Court and its staff assigned to this case;

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b.

the parties (whether or not dismissed at any time);

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c.

outside counsel of record in this case and their respective

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shareholders, partners, associates, legal assistants, and staff employees

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who are involved in this case;

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d.

general counsel for any of the parties and their respective associates,

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legal assistants, and any staff employees who are involved in this

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case;

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e.

officers, directors, employees, accountants, and agents of the parties,

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or affiliated companies, who are assisting or dealing with counsel of

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record or general counsel;

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f.

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independent experts, investigators, consultants, and the like, retained
by any party in connection with this litigation;

g.

witnesses disclosed and persons to be deposed by any party but only
to the extent necessary to prepare such person for their respective and

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Protective Order
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expected testimony and/or cross-examination in discovery and/or at

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trial; or

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h.

persons deemed by counsel of record, whether or not a party, witness

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or deponent, necessary to effectively represent their respective

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client(s) in this litigation.

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2.

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Scope of Protective Order. This Protective Order:
a.

shall only apply to those specific documents that are designated as

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Confidential or Highly Confidential/Attorneys’ Eyes Only as set forth

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herein;

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b.

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shall apply to documents obtained by the parties or their respective
counsel from non-parties via subpoena; and

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c.

shall not apply to documents obtained by the parties or their

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respective counsel from sources independent of and not otherwise

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affiliated with any of the parties to this case.

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3.

Documents Eligible for Protection. Documents are eligible for protection

under this Protective Order when the documents and information are deemed to contain:

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a. Trade secrets;

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b. Financial and business planning information; or

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c. Research and development information.

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The above categories of information, if disclosed, would cause the producing party

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competitive harm. Both trade secrets, including formulas, techniques, and processes, and

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financial and business planning information require protection pursuant to this Protective

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Order to safeguard the competitive advantage the producing party has developed and

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sought to maintain. Research and development information requires protection pursuant

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to this Protective Order in order to safeguard the producing party’s efforts to improve and

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test its products and systems, leading to a competitive advantage, and to prevent the

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disclosure of intellectual property.

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Given the gravity and significance of a producing party’s trade secrets, financial

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and business planning information, and research and development information, this

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protection should be addressed by court order.

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4.

Notice of Protective Order. Any person who is permitted by counsel to

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view and/or retain a copy of any document covered by this Protective Order shall be

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provided with a copy of this Protective Order and shall, by receiving a copy of same and

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viewing and/or retaining such document, agrees to be bound by the terms hereof and shall

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acknowledge the same in writing.

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Designation as Highly Confidential/Attorneys’ Eyes Only. In addition to

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the protections afforded Confidential Information or Material under this Order, a

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producing party may designate any Confidential Information or Material which it further

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reasonably believes constitutes a trade secret or other highly confidential research,

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development, or commercial information, the disclosure of which to the other party or

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public

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Confidential/Attorneys’ Eyes Only” by visibly designating such documents or by

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otherwise so designating sections of deposition transcripts or answers to interrogatories

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that contain such “Highly Confidential/Attorneys’ Eyes Only.” Materials designated as

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“Highly Confidential/Attorney’s Eyes Only” (or “Attorneys’ Eyes Only”) may be

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disclosed only to counsel and general counsel for the parties (including staff as described

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in paragraph 1(c) and (d)), the Court and its staff assigned to this case, experts as defined

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in paragraph 1(f) who have signed the Confidentiality Undertaking of paragraph 10, court

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reporters required to transcribe designated testimony and experts as defined in paragraph

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1(f) who have signed the Confidentiality Undertaking of paragraph 10. Any further

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disclosure of such information to others shall occur only by agreement of the parties in

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writing or court order.

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could

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producing

cause

the

producing

party

competitive

harm,

as

“Highly

Voluminous Documents. In the case of voluminous documents, the
parties

may

designate

documents

as

“Confidential”

or

“Highly

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Confidential/Attorneys’ Eyes Only” by identifying ranges of numbered documents that

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are either “Confidential” or “Highly Confidential/Attorneys’ Eyes Only.”

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7.

Conclusion of Litigation. At the conclusion and final disposition of this

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litigation, either party shall have the right to request in writing that all such documents

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covered by this Protective Order either be returned to that party who shall have produced

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the same or destroyed provided such written request shall be made within forty-five (45)

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days following such conclusion and final disposition; otherwise, the right to a return or

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destruction of such document shall be deemed waived.

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8.

Order of Exclusion. If the Parties cannot resolve a dispute regarding the

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inclusion of a document or other evidence within the coverage of this Protective Order or

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the classification proposed for said document or evidence without court intervention, the

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Designating Party shall be authorized to seek a Telephonic Discovery Dispute

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Conference (TDDC) with the Court pursuant to the Judge’s rules within 14 days of the

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parties agreeing that the meet and confer process will not resolve their dispute. If the

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Designating Party does not seek a TDDC within such timeframe, the designation shall be

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waived. The Court in its sole discretion may award monetary sanctions in favor of the

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prevailing party upon challenge made pursuant to this Paragraph. Instances in which

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sanctions are appropriate include, but are not limited to, designations made without a

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good faith basis, designations made for an improper purpose such as to harass or impede

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a party’s ability to view the evidence being used against it, designations made in violation

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of prior TDDC rulings, frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties). Unless the

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Designating Party has waived the confidentiality designation by failing to seek a

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Telephonic Discovery Dispute Conference with the Court as described above, all parties

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shall continue to afford the material in question the level of protection to which it is

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entitled under the Producing Party’s designation until the court rules on the challenge .

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9.

Non-Waiver of Privileges. Notwithstanding any other provision in this

order to the contrary, the inadvertent or unintentional disclosure by any party of
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confidential information or information subject to the attorney client privilege, work

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product privilege or any other privilege or protection provided by law, either by way of

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document production or deposition testimony or exhibit thereto, regardless of whether the

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information was so designated at the time of disclosure, shall not be deemed a waiver in

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whole or in part of the party’s claim of confidentiality or privilege, either as to the

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specific information disclosed or as to any other information relating thereto on the same

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or related subject matter. Upon notice of any inadvertent or unintentional disclosure, the

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receiving party shall return said documents and things and all copies immediately, and

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shall not use any privileged documents or information in connection with this litigation.

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This Protective Order shall be interpreted to provide the maximum protection allowed by

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Federal Rule of Evidence 502(d). Nothing contained herein is intended to or shall serve

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to limit a party’s right to conduct a review of documents, ESI, or information (including

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metadata) for relevance, responsiveness, and/or segregation of privileged and/or

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protected information before production.

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10.

Violation of Order. Any violation of this Order by anyone having

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knowledge thereof may subject that person or entity to imposition of an appropriate

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sanction, in the discretion of the Court, as within or authorized by any statute, rule, or

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inherent power of the Court, or as otherwise provided by law.

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11.

Undertaking. All persons specified in paragraph 1(f) through (h) to whom

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disclosure of Confidential Information or Highly Confidential/Attorneys’ Eyes Only

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material is made shall be given a copy of this Protective Order and shall sign the

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Undertaking Regarding Confidentiality form attached hereto as Exhibit 1 indicating that

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they have read this Protective Order and agree to be bound by its terms.

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Disclosure of Confidential Material at Deposition. During any deposition

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in which Confidential or Highly Confidential/Attorney’s Eyes Only Information is

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discussed, counsel attending the deposition must make a good-faith effort to designate, on

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the record, the portions of the transcript that will contain Confidential or Highly

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Confidential/Attorney’s Eyes Only Information. The portions of any deposition transcript
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that counsel for any party has designated on the record at the deposition as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEY’S EYES ONLY,”

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and any such information marked as a deposition exhibit shall be treated as Confidential

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or Highly Confidential/Attorney’s Eyes Only Information and placed in a separately

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bound volume. For deposition testimony not designated on the record during the

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deposition, portions of the transcript may be designated “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL/ATTORNEY’S EYES ONLY” if, within fourteen (14)

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days of the transcript’s delivery to the Parties’ counsel of record, counsel designates in

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writing, by page, any portion of the transcript as Confidential or Highly

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Confidential/Attorney’s Eyes Only Information. In the time after the deposition but

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before the expiration of this fourteen (14) day period, the entirety of all deposition

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transcripts must be treated as if they contained Highly Confidential/Attorney’s Eyes

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Only Information.

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Exclusion of Persons from Deposition. If any Confidential or Highly

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Confidential/Attorney’s Eyes Only Information or Material is summarized, discussed or

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quoted at any deposition, all persons other than those to whom disclosure is permitted

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hereunder may be excluded from such portion of the deposition at the request of the

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Producing Party.

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14.

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Privilege Logs. No party shall be obligated to log privileged or otherwise

protected communications received after the filing date of the Complaint in this action.
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Filing Under Seal. Subject to public policy, and further court order, nothing

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shall be filed under seal, and the Court shall not be required to take any action, without

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separate prior order by the Judge before whom the hearing or proceeding will take place,

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after application by the affected party with appropriate notice to opposing counsel. If the

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Court grants a party permission to file an item under seal, a duplicate disclosing all non-

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confidential information, if any, shall be filed and made part of the public record. The

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item may be redacted to eliminate confidential material from the document. The

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document shall be titled to show that it corresponds to an item filed under seal, e.g.,
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“Redacted Copy of Sealed Declaration of John Smith in Support of Motion for Summary

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Judgment.” The sealed and redacted documents shall be filed simultaneously.

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ORDER

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Good cause appearing, the proposed Protective Order, above, in Case No. 1:15-cv1137-MJS, is hereby approved and adopted as the Order of the Court.

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IT IS SO ORDERED.
Dated:

May 25, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Exhibit “1”

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Protective Order
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
) Case No.: 1:15-CV-01137---MJS
THE SHERWIN-WILLIAMS
)
COMPANY, d/b/a SHERWINWILLIAMS AUTOMOTIVE FINISHES, )
)
UNDERTAKING REGARDING
)
Plaintiff,
)
CONFIDENTIALITY
)
vs.
)
)
COURTESY OLDSMOBILECADILLAC, INC. AND BEN WELLS, )
)
)
Defendants.
)
)
)

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The undersigned individual hereby certifies that he/she has read the foregoing

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Protective Order, understands the terms thereof, and agrees to be bound thereby

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personally if receiving Confidential Information or Highly Confidential/Attorney’s Eyes

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Only in the course of the above-captioned litigation.

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The undersigned acknowledges that breach of the Protective Order shall be

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actionable by any aggrieved party to the Action that is the subject of the foregoing

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Protective Order, and that such breach shall subject the undersigned to any and all

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applicable legal and equitable remedies for enforcement for the Protective Order and/or

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relief, including damages, for its breach.

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Promptly upon termination of this action, I will return all Confidential Information

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or Highly Confidential/Attorney’s Eyes Only which came into my possession, and all

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documents or things which I have prepared relating thereto, to counsel for the party

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supplying such Information to me.

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I hereby submit to the jurisdiction of this Court for the purpose of enforcement of
the Protective Order in this action.

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Date: __________________

Name: __________________________________
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