Country Fresh Batter, Inc v. Lion Raisins, Inc.

Filing 38

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Barbara A. McAuliffe on 11/9/2018. (Valdez, E)

1
2
3
4
5
6
7
8
9
10

Attorneys for Plaintiff, COUNTRY FRESH BATTER, INC.,
d/b/a HOPE’S COOKIES
BERTRAM T. KAUFMANN, CA Bar #149499
9500 S. DeWolf Avenue
P.O. Box 1350
Selma, CA 93622
Tel: [phone]
Email: [e-mail]

13

Brian C. Leighton, CA Bar #090907
LAW OFFICES OF BRIAN C. LEIGHTON
755 N. Peach Avenue, Suite G-10
Clovis, CA 93611
Tel: [phone]
Email: [e-mail]

14

Attorneys for Defendant, LION RAISINS, INC.

11

United States District Court
Eastern District of California

Andrew M. Hutchison (State Bar No. 289315)
COZEN O’CONNOR
101 Montgomery St., Suite 1400
San Francisco, California 94104
Tel:
[phone]
Email: [e-mail]

12

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17
18
19

FRESNO DIVISION
COUNTRY FRESH BATTER, INC., D/B/A
Case No. 1:17-cv-1527-DAD-BAM
HOPE’S COOKIES, a Pennsylvania
corporation,
Hon. Dale A. Drozd
Plaintiff,

20
21

v.

22

LION RAISINS, INC., a California corporation,

23
24
25
26
27
28

Defendant.

STIPULATED
PROTECTIVE ORDER

Pursuant to Fed. R. Civ. P. 26 Local Rule 141.1 of the Local Rules of the

1
2

District Court for the Eastern District of California, Plaintiff Country Fresh Batter,

3

Inc., doing business as Hope’s Cookies (“Plaintiff” or “Hope’s”) and Defendant Lion

4

Raisins, Inc. (“Defendant” or “Lion”) hereby stipulate for the purpose of jointly

5

requesting that the Court enter a protective order submit the following stipulation to

6

extend certain currently scheduled discovery deadlines as set forth below.

7

1.

Disclosure and discovery activity in this action are likely to involve production

8
9

PURPOSES AND LIMITATIONS

of confidential, proprietary, or private information, including but not limited to, the

10

identities of Defendant Lion Raisins, Inc.’s (“Lion”) customers, the identities of

11

growers of raisins from whom Lion purchase raisins, Lion’s contracts with customers

12

other that Plaintiff, and Lion’s confidential business practices including information

13

related to its harvesting of raisins, storage of raisins, and inventory of raisins. Good

14

cause exists for the special protection of such information from public disclosure and

15

from use for any purpose other than prosecuting this litigation may be warranted, as

16

such information is not publicly available and, if disclosed, will have the effect of

17

causing harm to Lion’s competitive position. Thus, to facilitate the production and

18

receipt of information during discovery in the above-captioned litigation, the parties

19

hereby stipulate to and petition the court to enter the following Stipulated Protective

20

Order. The parties acknowledge that this Order does not confer blanket protections on

21

all disclosures or responses to discovery and that the protection it affords from public

22

disclosure and use extends only to the limited information or items that are entitled to

23

confidential treatment under the applicable legal principles. The parties further

24

acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

25

does not entitle them to file confidential information under seal; Local Rule 141 sets

26

forth the procedures that must be followed and the standards that will be applied when

27

a party seeks permission from the court to file material under seal.

28

2.

DEFINITIONS
2

1
2
3

2.1

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

of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

4

how it is generated, stored or maintained) or tangible things that qualify for protection

5

under Federal Rule of Civil Procedure 26(c).

6
7
8
9

2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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

10

items that it produces in disclosures or in responses to discovery as

11

“CONFIDENTIAL.”

12

2.5

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

13

the medium or manner in which it is generated, stored, or maintained (including,

14

among other things, testimony, transcripts, and tangible things), that are produced or

15

generated in disclosures or responses to discovery in this matter.

16

2.6

Expert: a person with specialized knowledge or experience in a matter

17

pertinent to the litigation who has been retained by a Party or its counsel to serve as an

18

expert witness or as a consultant in this action.

19

2.7

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

20

House Counsel does not include Outside Counsel of Record or any other outside

21

counsel.

22
23
24

2.8

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

other legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party

25

to this action but are retained to represent or advise a party to this action and have

26

appeared in this action on behalf of that party or are affiliated with a law firm which

27

has appeared on behalf of that party.

28

2.10 Party: any party to this action, including all of its officers, directors,
3

1

employees, consultants, retained experts, and Outside Counsel of Record (and their

2

support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

3
4

Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support

5
6

services (e.g., photocopying, videotaping, translating, preparing exhibits or

7

demonstrations, and organizing, storing, or retrieving data in any form or medium)

8

and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

9
10

designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material

11
12

from a Producing Party.

13

3.

SCOPE
The protections conferred by this Stipulation and Order cover not only

14
15

Protected Material (as defined above), but also (1) any information copied or extracted

16

from Protected Material; (2) all copies, excerpts, summaries, or compilations of

17

Protected Material; and (3) any testimony, conversations, or presentations by Parties

18

or their Counsel that might reveal Protected Material. However, the protections

19

conferred by this Stipulation and Order do not cover the following information: (a)

20

any information that is in the public domain at the time of disclosure to a Receiving

21

Party or becomes part of the public domain after its disclosure to a Receiving Party as

22

a result of publication not involving a violation of this Order, including becoming part

23

of the public record through trial or otherwise; and (b) any information known to the

24

Receiving Party prior to the disclosure or obtained by the Receiving Party after the

25

disclosure from a source who obtained the information lawfully and under no

26

obligation of confidentiality to the Designating Party. Any use of Protected Material at

27

trial shall be governed by a separate agreement or order.

28

4.

DURATION
4

Even after final disposition of this litigation, the confidentiality obligations

1
2

imposed by this Order shall remain in effect until a Designating Party agrees

3

otherwise in writing or a court order otherwise directs. Final disposition shall be

4

deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

5

without prejudice; and (2) final judgment herein after the completion and exhaustion

6

of all appeals, rehearings, remands, trials, or reviews of this action, including the time

7

limits for filing any motions or applications for extension of time pursuant to

8

applicable law.

9

5.

10

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

11

Each Party or Non-Party that designates information or items for protection under this

12

Order must take care to limit any such designation to specific material that qualifies

13

under the appropriate standards. The Designating Party must designate for protection

14

only those parts of material, documents, items, or oral or written communications that

15

qualify – so that other portions of the material, documents, items, or communications

16

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

17

this Order.

18

Mass, indiscriminate, or routinized designations are prohibited. Designations

19

that are shown to be clearly unjustified or that have been made for an improper

20

purpose (e.g., to unnecessarily encumber or retard the case development process or to

21

impose unnecessary expenses and burdens on other parties) expose the Designating

22

Party to sanctions.

23

If it comes to a Designating Party’s attention that information or items that it

24

designated for protection do not qualify for protection, that Designating Party must

25

promptly notify all other Parties that it is withdrawing the mistaken designation.

26

5.2

Manner and Timing of Designations. Except as otherwise provided in

27

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

28

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
5

1

under this Order must be clearly so designated before the material is disclosed or

2

produced.

3

Designation in conformity with this Order requires:

4

(a) for information in documentary form (e.g., paper or electronic

5

documents, but excluding transcripts of depositions or other pretrial or trial

6

proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each

7

page that contains protected material. If only a portion or portions of the material on a

8

page qualifies for protection, the Producing Party also must clearly identify the

9

protected portion(s) (e.g., by making appropriate markings in the margins).

10

A Party or Non-Party that makes original documents or materials available for

11

inspection need not designate them for protection until after the inspecting Party has

12

indicated which material it would like copied and produced. During the inspection and

13

before the designation, all of the material made available for inspection shall be

14

deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents

15

it wants copied and produced, the Producing Party must determine which documents,

16

or portions thereof, qualify for protection under this Order. Then, before producing the

17

specified documents, the Producing Party must affix the “CONFIDENTIAL” legend

18

to each page that contains Protected Material. If only a portion or portions of the

19

material on a page qualifies for protection, the Producing Party also must clearly

20

identify the protected portion(s) (e.g., by making appropriate markings in the

21

margins).

22

(b) for testimony given in deposition or in other pretrial or trial proceedings,

23

that the Designating Party identify on the record, before the close of the deposition,

24

hearing, or other proceeding, all protected testimony.

25

(c) for information produced in some form other than documentary and for

26

any other tangible items, that the Producing Party affix in a prominent place on the

27

exterior of the container or containers in which the information or item is stored the

28

legend “CONFIDENTIAL.” If only a portion or portions of the information or item
6

1

warrant protection, the Producing Party, to the extent practicable, shall identify the

2

protected portion(s).
5.3

3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

4

failure to designate qualified information or items does not, standing alone, waive the

5

Designating Party’s right to secure protection under this Order for such material.

6

Upon timely correction of a designation, the Receiving Party must make reasonable

7

efforts to assure that the material is treated in accordance with the provisions of this

8

Order.

9

6.

10

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

11

designation of confidentiality at any time. Unless a prompt challenge to a Designating

12

Party’s confidentiality designation is necessary to avoid foreseeable, substantial

13

unfairness, unnecessary economic burdens, or a significant disruption or delay of the

14

litigation, a Party does not waive its right to challenge a confidentiality designation by

15

electing not to mount a challenge promptly after the original designation is disclosed.

16

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

17

resolution process by providing written notice of each designation it is challenging

18

and describing the basis for each challenge. To avoid ambiguity as to whether a

19

challenge has been made, the written notice must recite that the challenge to

20

confidentiality is being made in accordance with this specific paragraph of the

21

Protective Order. The parties shall attempt to resolve each challenge in good faith and

22

must begin the process by conferring directly (in voice to voice dialogue; other forms

23

of communication are not sufficient) within 14 days of the date of service of notice. In

24

conferring, the Challenging Party must explain the basis for its belief that the

25

confidentiality designation was not proper and must give the Designating Party an

26

opportunity to review the designated material, to reconsider the circumstances, and, if

27

no change in designation is offered, to explain the basis for the chosen designation. A

28

Challenging Party may proceed to the next stage of the challenge process only if it has
7

1

engaged in this meet and confer process first or establishes that the Designating Party

2

is unwilling to participate in the meet and confer process in a timely manner.
6.3

3

Judicial Intervention. If the Parties cannot resolve a challenge without

4

court intervention, the Designating Party shall file and serve a motion to retain

5

confidentiality under Local Rules 230 and 251 (and in compliance with Local Rule

6

141, if applicable) within 21 days of the initial notice of challenge or within 14 days

7

of the parties agreeing that the meet and confer process will not resolve their dispute,

8

whichever is earlier. Each such motion must be accompanied by a competent

9

declaration affirming that the movant has complied with the meet and confer

10

requirements imposed in the preceding paragraph. Failure by the Designating Party to

11

make such a motion including the required declaration within 21 days (or 14 days, if

12

applicable) shall automatically waive the confidentiality designation for each

13

challenged designation. In addition, the Challenging Party may file a motion

14

challenging a confidentiality designation at any time if there is good cause for doing

15

so, including a challenge to the designation of a deposition transcript or any portions

16

thereof. Any motion brought pursuant to this provision must be accompanied by a

17

competent declaration affirming that the movant has complied with the meet and

18

confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the

19
20

Designating Party. Frivolous challenges, and those made for an improper purpose

21

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

22

expose the Challenging Party to sanctions. Unless the Designating Party has waived

23

the confidentiality designation by failing to file a motion to retain confidentiality as

24

described above, all parties shall continue to afford the material in question the level

25

of protection to which it is entitled under the Producing Party’s designation until the

26

court rules on the challenge.

27

7.

28

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is
8

1

disclosed or produced by another Party or by a Non-Party in connection with this case

2

only for prosecuting, defending, or attempting to settle this litigation. Such Protected

3

Material may be disclosed only to the categories of persons and under the conditions

4

described in this Order. When the litigation has been terminated, a Receiving Party

5

must comply with the provisions of section 13 below (FINAL DISPOSITION).

6

Protected Material must be stored and maintained by a Receiving Party at a

7

location and in a secure manner that ensures that access is limited to the persons

8

authorized under this Order.

9

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

10

otherwise ordered by the court or permitted in writing by the Designating Party, a

11

Receiving Party may disclose any information or item designated “CONFIDENTIAL”

12

only to:

13

(a) the Receiving Party’s Outside Counsel of Record in this action, as well

14

as employees of said Outside Counsel of Record to whom it is reasonably necessary to

15

disclose the information for this litigation and who have signed the “Acknowledgment

16

and Agreement to Be Bound” that is attached hereto as Exhibit A;

17

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

18

Receiving Party to whom disclosure is reasonably necessary for this litigation and

19

who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

20

(c) Experts (as defined in this Order) of the Receiving Party to whom

21

disclosure is reasonably necessary for this litigation and who have signed the

22

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

23

(d) the court and its personnel;

24

(e) court reporters and their staff, professional jury or trial consultants,

25

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary

26

for this litigation and who have signed the “Acknowledgment and Agreement to Be

27

Bound” (Exhibit A);

28

(f) during their depositions, witnesses in the action to whom disclosure is
9

1

reasonably necessary and who have signed the “Acknowledgment and Agreement to

2

Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

3

by the court. Pages of transcribed deposition testimony or exhibits to depositions that

4

reveal Protected Material must be separately bound by the court reporter and may not

5

be disclosed to anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a

6
7

custodian or other person who otherwise possessed or knew the information.

8

8.

9
10

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation

11

that compels disclosure of any information or items designated in this action as

12

“CONFIDENTIAL,” that Party must:

13
14

(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

15

(b) promptly notify in writing the party who caused the subpoena or order to

16

issue in the other litigation that some or all of the material covered by the subpoena or

17

order is subject to this Protective Order. Such notification shall include a copy of this

18

Stipulated Protective Order; and

19
20
21

(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

22

the subpoena or court order shall not produce any information designated in this

23

action as “CONFIDENTIAL” before a determination by the court from which the

24

subpoena or order issued, unless the Party has obtained the Designating Party’s

25

permission. The Designating Party shall bear the burden and expense of seeking

26

protection in that court of its confidential material – and nothing in these provisions

27

should be construed as authorizing or encouraging a Receiving Party in this action to

28

disobey a lawful directive from another court.
10

1

9.

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

2
3

(a) The terms of this Order are applicable to information produced by a

4

Non-Party in this action and designated as “CONFIDENTIAL.” Such information

5

produced by Non-Parties in connection with this litigation is protected by the

6

remedies and relief provided by this Order. Nothing in these provisions should be

7

construed as prohibiting a Non-Party from seeking additional protections.

8

(b) In the event that a Party is required, by a valid discovery request, to

9

produce a Non-Party’s confidential information in its possession, and the Party is

10

subject to an agreement with the Non-Party not to produce the Non-Party’s

11

confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party

12
13

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

14

with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

15
16

Protective Order in this litigation, the relevant discovery request(s), and a reasonably

17

specific description of the information requested; and
(3) make the information requested available for inspection by the Non-

18
19

Party.
(c) If the Non-Party fails to object or seek a protective order from this court

20
21

within 14 days of receiving the notice and accompanying information, the Receiving

22

Party may produce the Non-Party’s confidential information responsive to the

23

discovery request. If the Non-Party timely seeks a protective order, the Receiving

24

Party shall not produce any information in its possession or control that is subject to

25

the confidentiality agreement with the Non-Party before a determination by the court.

26

Absent a court order to the contrary, the Non-Party shall bear the burden and expense

27

of seeking protection in this court of its Protected Material.

28

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
11

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

1
2

Protected Material to any person or in any circumstance not authorized under this

3

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

4

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

5

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

6

persons to whom unauthorized disclosures were made of all the terms of this Order,

7

and (d) request such person or persons to execute the “Acknowledgment and

8

Agreement to Be Bound” that is attached hereto as Exhibit A.

9

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

10

PROTECTED

MATERIAL

11

When a Producing Party gives notice to Receiving Parties that certain

12

inadvertently produced material is subject to a claim of privilege or other protection,

13

the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

14

Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

15

may be established in an e-discovery order that provides for production without prior

16

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

17

parties reach an agreement on the effect of disclosure of a communication or

18

information covered by the attorney-client privilege or work product protection, the

19

parties may incorporate their agreement in the stipulated protective order submitted to

20

the court.

21

12.

22
23
24

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

25

Protective Order no Party waives any right it otherwise would have to object to

26

disclosing or producing any information or item on any ground not addressed in this

27

Stipulated Protective Order. Similarly, no Party waives any right to object on any

28

ground to use in evidence of any of the material covered by this Protective Order.
12

1

12.3 Filing Protected Material. Without written permission from the

2

Designating Party or a court order secured after appropriate notice to all interested

3

persons, a Receiving Party may not file in the public record in this action any

4

Protected Material. A Party that seeks to file under seal any Protected Material must

5

comply with Local Rule 141.

6
7

13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph

8
9

4, each Receiving Party must return all Protected Material to the Producing Party or

10

destroy such material. As used in this subdivision, “all Protected Material” includes

11

all copies, abstracts, compilations, summaries, and any other format reproducing or

12

capturing any of the Protected Material. Whether the Protected Material is returned or

13

destroyed, the Receiving Party must submit a written certification to the Producing

14

Party (and, if not the same person or entity, to the Designating Party) by the 60 day

15

deadline that (1) identifies (by category, where appropriate) all the Protected Material

16

that was returned or destroyed and (2) affirms that the Receiving Party has not

17

retained any copies, abstracts, compilations, summaries or any other format

18

reproducing or capturing any of the Protected Material. Notwithstanding this

19

provision, Counsel are entitled to retain an archival copy of all pleadings, motion

20

papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

21

deposition and trial exhibits, expert reports, attorney work product, and consultant and

22

expert work product, even if such materials contain Protected Material. Any such

23

archival copies that contain or constitute Protected Material remain subject to this

24

Protective Order as set forth in Section 4 (DURATION).

25

///

26

///

27

///

28

///
13

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3

DATED: 10/26/18

/s/Andrew M. Hutchison
Andrew M. Hutchison
Cozen O’Connor
Attorneys for Plaintiff
Country Fresh Batter, Inc.

DATED: 10/26/18

/s/ Bertram T. Kaufmann
Bertram T. Kaufmann
Corporate Counsel
Lion Raisins, Inc.

4
5
6
7
8
9
10

Brian C. Leighton
Law Offices of Brian C. Leighton
Attorneys for Defendant
Lion Raisins, Inc.

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

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

4

_________________ [print or type full address], declare under penalty of perjury that

5

I have read in its entirety and understand the Stipulated Protective Order that was

6

issued by the United States District Court for the Eastern District of California on

7

[date] in the case of ___________ [insert formal name of the case and the number

8

and initials assigned to it by the court]. I agree to comply with and to be bound by

9

all the terms of this Stipulated Protective Order and I understand and acknowledge

10

that failure to so comply could expose me to sanctions and punishment in the nature of

11

contempt. I solemnly promise that I will not disclose in any manner any information

12

or item that is subject to this Stipulated Protective Order to any person or entity except

13

in strict compliance with the provisions of this Order.

14

I further agree to submit to the jurisdiction of the United States District Court

15

for the Eastern District of California for the purpose of enforcing the terms of this

16

Stipulated Protective Order, even if such enforcement proceedings occur after

17

termination of this action.

18

I hereby appoint __________________________ [print or type full name] of

19

_______________________________________ [print or type full address and

20

telephone number] as my California agent for service of process in connection with

21

this action or any proceedings related to enforcement of this Stipulated Protective

22

Order.

23
24

Date: ______________________________________

25

City and State where sworn and signed: _________________________________

26
27

Printed name: _______________________________

28

Signature: __________________________________
15

1

ORDER

2

The Court adopts the stipulated protective order submitted by the parties.

3
4
5
6

IT IS SO ORDERED.
Dated:

/s/ Barbara

November 9, 2018

A. McAuliffe

_

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
16