M.D. Mark, Inc. v. Pacseis, Inc.

Filing 23

Stipulation and Protective Order, signed by Magistrate Judge Jennifer L. Thurston on 10/16/2017. (Rosales, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 M.D. MARK, INC., 12 Plaintiff, 13 vs. 14 PACSEIS, INC., 15 Defendant. ) Case No. 1:17-CV-00258-LJO-JLT ) ) STIPULATION AND PROTECTIVE ORDER ) (Doc. 22) ) ) ) ) ) 16 17 IT IS HEREBY STIPULATED by and between plaintiff M.D. Mark, Inc. (“plaintiff”) and 18 defendant PacSeis, Inc. (“defendant”), that in order to facilitate the exchange of information and 19 documents that may be subject to confidentiality limitations on disclosure due to federal laws, state 20 laws, and privacy rights, the Parties stipulate as follows: 21 22 1. In this Stipulation and Protective Order, the words set forth below shall have the following meaning: 23 a. “Proceeding” means the above-entitled proceeding (1:17-CV-00258-LJO-JLT). 24 b. “Court” means the Hon. Jennifer L. Thurston, or any other judge or magistrate to 25 which this Proceeding may be assigned, including Court staff participating in such 26 proceedings. 27 c. “Confidential” means any information which is in the possession of a Designating 28 Party who believes in good faith that such information is entitled to confidential 1 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 treatment under applicable law. 2 d. “Confidential Materials” means any Documents, Testimony, or Information as 3 defined below designated as “Confidential” pursuant to the provisions of this 4 Stipulation and Protective Order. 5 e. “Designating Party” means the Party that designates Materials as “Confidential.” 6 f. “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give, or make 7 available Materials, or any part thereof, or any information contained therein. 8 g. “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as those terms are 9 defined by California Evidence Code Sections 250, 255, and 260, which have been 10 produced in this Proceeding by any person, and (ii) any copies, reproductions, or 11 summaries of all or any part of the foregoing. 12 h. “Information” means the content of Documents or Testimony. 13 i. “Testimony” means all depositions, declarations, or other testimony taken or used in 14 15 this Proceeding. 2. The Parties acknowledge that formal non-expert discovery has concluded in the 16 Proceeding; however, the Parties desire to informally exchange Information, Testimony, and /or 17 Documents through and as part of confidential settlement discussions. 18 Protective Order is not intended as a substitute for discovery or the Parties’ rights to discovery, nor 19 to allow the reopening of non-expert discovery. No Information, Testimony, and/or Documents 20 exchanged through and as part of the settlement discussions shall be admissible unless the same 21 were discovered through the formal non-expert discovery or were independently discovered by a 22 Party outside of formal discovery and the confidential settlement discussions. 23 3. This Stipulation and The Designating Party shall have the right to designate as “Confidential” any 24 Documents, Testimony, or Information that the Designating Party in good faith believes to contain 25 non-public information that is entitled to confidential treatment under applicable law. 26 27 4. The entry of this Stipulation and Protective Order does not alter, waive, modify, or abridge any right, privilege or protection otherwise available to any Party with respect to the 28 2 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 discovery of matters, including but not limited to any Party’s right to assert the attorney-client 2 privilege, the attorney work product doctrine, or other privileges, or any Party’s right to contest any 3 such assertion. 4 5. The Parties shall endeavor to mark or identify as “Confidential” any Documents, 5 Testimony, or Information exchanged pursuant to this Stipulation and Protective Order. 6 “Confidential” designation should not obscure or interfere with the legibility of the designated 7 Information or Documents. The 8 a. For Documents (apart from transcripts of depositions or other pretrial or trial 9 proceedings), the Designating Party must affix the legend “Confidential” on each 10 page of any Document containing such designated Confidential Material. 11 b. For Information produced in some form other than Documents, and for any other 12 tangible items, including, without limitation, compact discs or DVDs, the Designating 13 Party must affix in a prominent place on the exterior of the container or containers in 14 which the Information or item is stored the legend “Confidential.” If only portions of 15 the Information or item warrant protection, the Designating Party, to the extent 16 practicable, shall identify the “Confidential” portions. 17 6. The inadvertent production by any of the undersigned Parties or non-Parties to the 18 Proceedings of any Document, Testimony, or Information in this Proceeding without a 19 “Confidential” designation, shall be without prejudice to any claim that such item is “Confidential” 20 and such Party shall not be held to have waived any rights by such inadvertent production. In the 21 event that any Document, Testimony, or Information that is subject to a “Confidential” designation 22 is inadvertently produced without such designation, the Party that inadvertently produced the 23 document shall give written notice of such inadvertent production within twenty (20) days of 24 discovery of the inadvertent production, together with a further copy of the subject Document, 25 Testimony, or Information designated as “Confidential” (the “Inadvertent Production Notice”). 26 Upon receipt of such Inadvertent Production Notice, the Party that received the inadvertently 27 produced Document, Testimony, or Information shall promptly destroy the inadvertently produced 28 3 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 Document, Testimony, or Information and all copies thereof, or, at the expense of the producing 2 Party, return such together with all copies of such Document, Testimony, or Information to counsel 3 for the producing Party and shall retain only the “Confidential” designated Materials. Should the 4 receiving Party choose to destroy such inadvertently produced Document, Testimony, or 5 Information, the receiving Party shall notify the producing Party in writing of such destruction 6 within ten (10) days of receipt of written notice of the inadvertent production. This provision is not 7 intended to apply to any inadvertent production of any Information protected by attorney-client or 8 work product privileges. In the event that this provision conflicts with any applicable law regarding 9 waiver of confidentiality through the inadvertent production of Documents, Testimony, or 10 11 Information, such law shall govern. 7. In the event that counsel for a Party receiving Documents, Testimony, or Information 12 designated as “Confidential” objects to such designation with respect to any or all of such items, said 13 counsel shall advise counsel for the Designating Party, in writing, of such objections, the specific 14 Documents, Testimony, or Information to which each objection pertains, and the specific reasons 15 and support for such objections (the “Designation Objections”). Counsel for the Designating Party 16 shall have thirty (30) days from receipt of the written Designation Objections to either (a) agree in 17 writing to de-designate Documents, Testimony, or Information pursuant to any or all of the 18 Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all 19 designations on Documents, Testimony, or Information addressed by the Designation Objections 20 (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and 21 all existing designations on the Documents, Testimony, or Information at issue in such Motion shall 22 remain in place. The Designating Party shall have the burden on any Designation Motion of 23 establishing the applicability of its “Confidential” designation. In the event that the Designation 24 Objections are neither timely agreed to nor timely addressed in the Designation Motion, then such 25 Documents, Testimony, or Information shall be de-designated in accordance with the Designation 26 Objection applicable to such material. 27 8. Access to and/or Disclosure of Confidential Materials designated as “Confidential” 28 4 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 shall be permitted only to the following persons: 2 a. The Court; 3 b. (1) Attorneys of record in the Proceedings and their affiliated attorneys, paralegals, 4 clerical and secretarial staff employed by such attorneys who are actively involved in 5 the Proceedings and are not employees of any Party. (2) In-house counsel to the 6 undersigned Parties and the paralegal, clerical and secretarial staff employed by such 7 counsel. 8 Materials shall be advised that such Confidential Materials are being Disclosed 9 pursuant to, and are subject to, the terms of this Stipulation and Protective Order and 10 Provided, however, that each non-lawyer given access to Confidential that they may not be Disclosed other than pursuant to its terms; 11 c. those officers, directors, partners, members, employees and agents of all 12 nondesignating Parties that counsel for such Parties deems necessary to aid counsel in 13 settlement discussions in this Proceeding; provided, however, that prior to the 14 Disclosure of Confidential Materials to any such officer, director, partner, member, 15 employee or agent, counsel for the Party making the Disclosure shall deliver a copy 16 of this Stipulation and Protective Order to such person, shall explain that such person 17 is bound to follow the terms of such Order, and shall secure the signature of such 18 person on a statement in the form attached hereto as Exhibit A; 19 d. outside experts or expert consultants consulted by the undersigned Parties or their 20 counsel in connection with settlement discussions in the Proceeding, whether or not 21 retained to testify at any oral hearing; provided, however, that prior to the Disclosure 22 of Confidential Materials to any such expert or expert consultant, counsel for the 23 Party making the Disclosure shall deliver a copy of this Stipulation and Protective 24 Order to such person, shall explain its terms to such person, and shall secure the 25 signature of such person on a statement in the form attached hereto as Exhibit A. It 26 shall be the obligation of counsel, upon learning of any breach or threatened breach of 27 this Stipulation and Protective Order by any such expert or expert consultant, to 28 5 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 promptly notify counsel for the Designating Party of such breach or threatened 2 breach; and 3 4 e. any other person that the Designating Party agrees to in writing. 9. Confidential Materials shall be used by the persons receiving them only for the 5 purposes of preparing for, conducting, and participating in confidential settlement discussions, and 6 not for any business, litigation, or other purpose whatsoever. 7 10. Any Party to the Proceeding (or other person subject to the terms of this Stipulation 8 and Protective Order) may ask the Court, after appropriate notice to the other Parties to the 9 Proceeding, to modify or grant relief from any provision of this Stipulation and Protective Order. 10 11 11. Entering into, agreeing to, and/or complying with the terms of this Stipulation and Protective Order shall not: 12 a. operate as an admission by any person that any particular Document, Testimony, or 13 Information marked “Confidential: contains or reflects trade secrets, proprietary, 14 confidential or competitively sensitive business, commercial, financial or personal 15 information; or 16 b. prejudice in any way the right of any Party (or any other person subject to the terms 17 of this Stipulation and Protective Order): 18 i. to seek a determination by the Court of whether any particular Confidential 19 Material should be subject to protection as “Confidential” under the terms of 20 this Stipulation and Protective Order; or 21 ii. to seek relief from the Court on appropriate notice to all other Parties to the 22 Proceeding from any provision(s) of this Stipulation and Protective Order, either 23 generally or as to any particular Document, Testimony, or Information. 24 12. Any Party to the Proceeding who has not executed this Stipulation and Protective 25 Order as of the time it is presented to the Court for signature may thereafter become a Party to this 26 Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and filing the 27 same with the Court, and serving copies of such signed and dated copy upon the other Parties to this 28 6 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 2 Stipulation and Protective Order. 13. Any Confidential Materials that may be produced by a non-Party witness in the 3 Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as 4 “Confidential” under the terms of this Stipulation and Protective Order, and any such designation by 5 a non-Party shall have the same force and effect, and create the same duties and obligations, as if 6 made by one of the undersigned Parties hereto. Any such designation shall also function as a 7 consent by such producing Party to the authority of the Court in the Proceeding to resolve and 8 conclusively determine any motion or other application made by any person or Party with respect to 9 such designation, or any other matter otherwise arising under this Stipulation and Protective Order. 10 14. If any person subject to this Stipulation and Protective Order who has custody of any 11 Confidential Materials receives a subpoena or other process (“Subpoena”) from any government or 12 other person or entity demanding production of Confidential Materials, the recipient of the Subpoena 13 shall promptly give notice of the same by electronic mail transmission, followed by either express 14 mail or overnight delivery to counsel of record for the Designating Party, and shall furnish such 15 counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, in its 16 sole discretion and at its own cost, move to quash or limit the Subpoena, otherwise oppose 17 production of the Confidential Materials, and/or seek to obtain confidential treatment of such 18 Confidential Materials from the subpoenaing person or entity to the fullest extent available under 19 law. The recipient of the Subpoena may not produce any Documents, Testimony, or Information 20 pursuant to the Subpoena prior to the date specified for production on the Subpoena. 21 15. Nothing in this Stipulation and Protective Order shall be construed to preclude either 22 Party from asserting in good faith that certain Confidential Materials require additional protection. 23 The Parties shall meet and confer to agree upon the terms of such additional protection. 24 16. If, after execution of this Stipulation and Protective Order, any Confidential Materials 25 submitted by a Designating Party under the terms of this Stipulation and Protective Order is 26 Disclosed by a non-Designating Party to any person other than in the manner authorized by this 27 Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall 28 7 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate 2 attention of the Designating Party. 3 17. This Stipulation and Protective Order is entered into without prejudice to the right of 4 any Party to knowingly waive the applicability of this Stipulation and Protective Order to any 5 Confidential Materials designated by that Party. If the Designating Party uses Confidential Materials 6 in a non-Confidential manner, then the Designating Party shall advise that the designation no longer 7 applies. 8 18. Without written permission from the Designating Party or a court order secured after 9 appropriate notice to all interested persons and compliance with the scheduling order and/or Local 10 Rule 141, a Party receiving Confidential Materials may not file in the public record in this action any 11 Confidential Materials. 12 13 14 19. The Parties shall meet and confer regarding the procedures for use of Confidential Materials at trial and shall move the Court for entry of an appropriate order. 20. This Stipulation and Protective Order shall continue to be binding after the conclusion 15 of this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party 16 may seek the written permission of the Designating Party or may move the Court for relief from the 17 provisions of this Stipulation and Protective Order. To the extent permitted by law, the Court shall 18 retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, even after 19 the Proceeding is terminated. 20 21. Within thirty (30) days after the settlement or other termination of the Proceeding, the 21 undersigned Parties shall have thirty (30) days to either (a) promptly return to counsel for each 22 Designating Party all Confidential Materials and all copies thereof (except that counsel for each 23 Party may maintain in its files, in continuing compliance with the terms of this Stipulation and 24 Protective Order, all work product, and one copy of each pleading filed with the Court, (b) agree 25 with counsel for the Designating Party upon appropriate methods and certification of destruction or 26 other disposition of such Confidential Materials, or (c) as to any Documents, Testimony, or other 27 Information not addressed by subparagraphs (a) and (b), file a motion seeking a Court order 28 8 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 regarding proper preservation of such Confidential Materials. To the extent permitted by law the 2 Court shall retain continuing jurisdiction to review and rule upon the motion referred to in sub- 3 paragraph (c) herein. 4 22. After this Stipulation and Protective Order has been signed by counsel for all Parties, 5 it shall be presented to the Court for entry. Counsel agree to be bound by the terms set forth herein 6 with regard to any Confidential Materials that have been produced before the Court signs this 7 Stipulation and Protective Order. 8 23. The Parties and all signatories to the Certification attached hereto as Exhibit A agree 9 to be bound by this Stipulation and Protective Order pending its approval and entry by the Court. In 10 the event that the Court modifies this Stipulation and Protective Order, or in the event that the Court 11 enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective 12 Order until such time as the Court may enter such a different Order. It is the Parties’ intent to be 13 bound by the terms of this Stipulation and Protective Order pending its entry so as to allow for 14 immediate production of Confidential Materials under the terms herein. 15 24. Even after the termination of this litigation, the confidentiality obligations imposed by 16 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 17 order otherwise directs. 18 19 This Stipulation and Protective Order may be executed in counterparts. DATED: September ___, 2017 ALEXANDER & ASSOCIATES, PLC 20 By: 21 WILLIAM L. ALEXANDER Attorneys for Defendants 22 23 DATED: September ___, 2017 NEMKOV & BONIFAVI, PLLC 24 By: DAN BONIFAZI Attorneys for Plaintiff 25 26 DATED: September ___, 2017 RICHARD A. NERVIG, P.C. 27 By: 28 9 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT RICHARD A. NERVIG Attorneys for Plaintiff 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 10 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 2 3 ORDER GOOD CAUSE APPEARING, the Court hereby approves the Stipulation for Protective Order as modified by the Court in paragraph 18. 4 5 6 IT IS SO ORDERED. Dated: October 16, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT 1 EXHIBIT A 2 CERTIFICATION RE CONFIDENTIAL MATERIALS 3 I hereby acknowledge that I, [NAME], 4 [POSITION AND EMPLOYER], am about to receive Confidential Materials supplied in connection 5 with the Proceeding, Case No. 1:17-CV-00258-LJO-JLT. 6 Materials,” as defined in the Stipulation and Protective Order (“Protective Order”), are provided to 7 me subject to the terms and restrictions of the Protective Order filed in this Proceeding. I have been 8 given a copy of the Protective Order; I have read it, and I agree to be bound by its terms. I 9 understand that Confidential Materials, including any notes or other records that may be made 10 regarding any such materials, shall not be Disclosed to anyone except as expressly permitted by the 11 Protective Order. I will not copy or use, except solely for the purposes of this Proceeding, any 12 Confidential Materials obtained pursuant to this Protective Order, except as provided therein or 13 otherwise ordered by the Court. I understand that I am to retain all copies of all Confidential 14 Materials provided to me in the Proceeding in a secure manner, and that all copies are to remain in 15 my personal custody until termination of my participation in this Proceeding, whereupon the copies 16 of such Confidential Materials will be returned to counsel who provided me with such Materials. I understand that the “Confidential 17 I declare under penalty of perjury, under the laws of the State of California, that the 18 foregoing is true and correct. Executed this _____ day of ______, 2017, at __________________. 19 DATED: BY: Signature 20 21 Title 22 23 Address 24 25 City, State, Zip 26 27 Telephone Number 28 12 STIPULATION AND PROTECTIVE ORDER 1:17-CV-00258-LJO-JLT

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