E. & J. Gallo Winery, et al. v. Strategic Materials, Inc.

Filing 37

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Erica P. Grosjean on 8/16/2018. (Rooney, M)

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FRANK M. PITRE (SBN 100077)
[e-mail]
JULIE L. FIEBER (SBN 202857)
[e-mail]
ABIGAIL D. BLODGETT (SBN 278813)
[e-mail]
COTCHETT, PITRE & McCARTHY, LLP
San Francisco Airport Office Center
840 Malcolm Road
Burlingame, CA 94010
Telephone: [phone]
Facsimile: [phone]

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D. GREG DURBIN (SBN 81749)
[e-mail]
TIMOTHY J. BUCHANAN (SBN 100409)
[e-mail]
MCCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP
7647 N. Fresno Street
Fresno, CA 93720
Telephone: [phone]
Facsimile: [phone]

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CHARLES J. STEVENS, SBN 106981
[e-mail]
BENJAMIN WAGNER, SBN 163581
[e-mail]
JASON LO, SBN 219030
[e-mail]
SPENCER W. RIRIE, SBN 248277
[e-mail]
SAMUEL A. SPEARS, SBN 295783
[e-mail]
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: [phone]
Facsimile: 213.229.7520

Attorneys for Plaintiffs

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Attorneys for Defendant

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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E. & J. GALLO WINERY, a California
corporation; GALLO GLASS COMPANY,
a Nevada Corporation;

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Plaintiff,
v.
STRATEGIC MATERIALS, INC., a
Delaware corporation;

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Defendant.
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CASE NO. 1:17-CV-01709-AWI-EPG
STIPULATED PROTECTIVE ORDER

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1.

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

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

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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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

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

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or responses to discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment under the

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applicable legal principles. The parties further acknowledge that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Civil Local Rules 140-141 set forth

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the procedures that must be followed and the standards that will be applied when a party seeks

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permission from the court to file material under seal.

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Statement Under L.R. 141.1(c)(1): Examples of confidential information that the parties may

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seek to protect from unrestricted or unprotected disclosure include: product costs; pricing; volumes;

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names of vendors, distributors, or customers; budgets; and similar confidential information related to

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their use and supply of recycled beneficiated glass cullet (“cullet”), which Plaintiffs have been

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obtaining from Defendant pursuant to the contract at issue in this litigation.

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Statement Under L.R. 141.1(c)(2): Information and documents shall only be designated

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under this protective order because the Designating Party believe the information or documents are

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proprietary or confidential, and not publicly released. Unrestricted or unprotected disclosure of such

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information or documents would result in prejudice or harm to the Producing Party by revealing its

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competitive confidential information, which represents valuable tangible and intangible assets of that

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party. Accordingly, the parties respectfully submit that there is good cause for entry of this order.

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Statement Under L.R. 141.1(c)(3): Protecting the confidential nature of information this way

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will be most efficient for the parties and the Court. The contract issues in this case turn largely on the

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parties’ performance of contract terms which concern the prices, volumes and similar information

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for cullet. Information the parties believe to be confidential will need to be exchanged, in discovery

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and motion practice. A private agreement to safeguard this information would be insufficient
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because it would need to be replicated in orders of this Court at the time of any filings of this

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information.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of

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Civil Procedure 26(c). Examples of the “CONFIDENTIAL” information that the Parties may seek to

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protect include information which is not available to the general public, which the Designating Party

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maintains in confidence, which it believes in good faith provides a competitive advantage, such as:

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correspondence amongst the Parties pertaining to their business relationship and performance of

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their agreement; pricing, volume, quality control, averaged/summarized/blended landed costs, and

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other information exchanged by the Parties; and freight costs and arrangements between the Parties.

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2.2b

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

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extremely sensitive “CONFIDENTIAL” Information or Items, disclosure of which to another Party

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or Non-Party would create a substantial risk of serious harm that could not be avoided by less

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restrictive means. Examples of the “HIGHLY CONFIDENTIAL” information that the Parties may

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seek to protect include information which is not available to the general public, which the

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Designating Party maintains in confidence, and which it believes in good faith provides a

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competitive advantage, such as: identities of suppliers of raw materials to SMI for the manufacture

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of cullet; prices for raw materials for the manufacture of cullet by SMI; volumes of raw materials for

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the manufacture of cullet delivered or promised by suppliers to SMI; prices for cullet charged by

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SMI to other customers aside from Gallo; volumes of cullet delivered or promised by SMI to other

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customers aside from Gallo; Gallo’s and SMI’s revenues, margins, and profits; Gallo’s internal

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analyses of alternate cullet supplies; Gallo’s negotiations or relationships with alternate cullet

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sources; Gallo’s supplier relationships unrelated to cullet, Gallo’s business planning related to cullet

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supplies.

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
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as their support staff).
2.4

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

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL.”

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2.5

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

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

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

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discovery in this matter.

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2.6

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

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

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consultant in this action.

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2.7

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

House Counsel does not include Outside Counsel of Record or any other outside counsel.
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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 to this action

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

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behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.10

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11

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

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

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,

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storing, or retrieving data in any form or medium) and their employees and subcontractors.

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2.13

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

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
2.14

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

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3.

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

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defined above), but also (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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

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

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publication not involving a violation of this Order, including becoming part of the public record

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through trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

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information lawfully and under no obligation of confidentiality to the Designating Party. Any use of

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Protected Material at trial shall be governed by a separate agreement or order.

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4.

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

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion

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

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

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party or

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Non-Party that designates information or items for protection under this Order must take care to

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limit any such designation to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material, documents, items, or

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

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items, or communications for which protection is not warranted are not swept unjustifiably within
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the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown

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to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily

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encumber or retard the case development process or to impose unnecessary expenses and burdens on

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other parties) expose the Designating Party to sanctions.

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

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protection do not qualify for protection, that Designating Party must promptly notify all other Parties

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that it is withdrawing the mistaken designation.

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5.2

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

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

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party

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affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to each page that contains

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protected material. If only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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

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need not designate them for protection until after the inspecting Party has indicated which material it

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would like copied and produced. During the inspection and before the designation, all of the material

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made available for inspection shall be deemed “HIGHLY CONFIDENTIAL.” After the inspecting

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Party has identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this Order. Then,

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before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL”

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or “HIGHLY CONFIDENTIAL” legend to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party also must
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clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container

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or containers in which the information or item is stored the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL.” If only a portion or portions of the information or item warrant

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protection, the Producing Party, to the extent practicable, shall identify the protected portion(s).
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,

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or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

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

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by providing written notice of each designation it is challenging and describing the basis for each

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to confidentiality is being made in accordance with this specific paragraph

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

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

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are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
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Party must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if it

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

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unwilling to participate in the meet and confer process in a timely manner.
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Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall first seek an informal discovery conference pursuant to

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the Magistrate’s Standard Procedures and may thereafter, if a resolution is not reached, file and

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serve a motion to retain confidentiality under Civil Local Rule 251 (and in compliance with Civil

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Local Rules 141 and 141.1, if applicable) within 21 days of the informal conference. Each such

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motion must be accompanied by a competent declaration affirming that the movant has complied

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with the meet and confer requirements imposed in the preceding paragraph. Failure by the

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Designating Party to make such a motion including the required declaration within 21 days shall

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automatically waive the confidentiality designation for each challenged designation. In addition,

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the Challenging Party may file a motion challenging a confidentiality designation at any time if

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there is good cause for doing so, including a challenge to the designation of a deposition transcript

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

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

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requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
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7.1

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

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

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 12 below (FINAL

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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in

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a secure manner that ensures that access is limited to the persons authorized under this Order.
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by

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the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information

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for this litigation;
(b) the officers, directors, and employees (including House Counsel) of the Receiving

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A) and served it upon the Designating

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Party;

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

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), and for whom the Receiving Party is obligated to serve the

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signed “Acknowledgment and Agreement to Be Bound” upon the Designating Party no later than

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the time of Expert Disclosures (for a Party’s affirmative experts) or Rebuttal Expert Disclosures

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(for a Party’s rebuttal experts and any non-testifying experts);

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(d) the court and its personnel;

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

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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(f) during their depositions, witnesses of the Designating Party;

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(g) during their depositions, officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and served it upon the

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Designating Party; and

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(h) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
7.3 Disclosure of “HIGHLY 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 “HIGHLY CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
said Outside Counsel of Record to whom it is reasonably necessary to disclose the information;

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(b) Designated House Counsel of the Receiving Party (1) to whom disclosure is reasonably

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necessary for this litigation, (2) who has signed the “Designated House Counsel Acknowledgment

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and Agreement to Be Bound” (Exhibit B) and served it upon the Designating Party, and (3) who

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has no involvement in competitive decision-making related to recycled glass or cullet.

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(c) Experts of the Receiving Party to whom disclosure is reasonably necessary for this

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

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and for whom the Receiving Party is obligated to serve the signed “Acknowledgment and

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Agreement to Be Bound” upon the Designating Party no later than the time of Expert Disclosures

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(for a Party’s affirmative experts) or Rebuttal Expert Disclosures (for a Party’s rebuttal experts

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and any non-testifying experts);

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(d) the court and its personnel;

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

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

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

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(f) during their depositions, witnesses of the Designating Party; and

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(g) the author or recipient of a document containing the information or a custodian or other
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person who otherwise possessed or knew the information;
(h) “Competitive decision-making,” as used herein, includes negotiations with suppliers

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regarding the supply of cullet or raw materials for the manufacture of cullet.
7.4 Disclosure of “HIGHLY CONFIDENTIAL” Information or Items to Industry Experts.

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Solely with regards to experts from, or with expertise in, the cullet manufacturing, glass

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manufacturing, or bottling industries:
(a) A Receiving Party that seeks to disclose materials that have been designated “HIGHLY

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CONFIDENTIAL” pursuant to paragraph 7.3 to an Expert (as defined in this Order) also must

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serve on the Designating Party, no later than the time of first disclosure, materials that (1) set forth

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the full name of the Expert, (2) attach a copy of the Expert’s current resume identifying the

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Expert’s current employer(s), and (3) identify all professional services, including in connection

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with a litigation, that the Expert has provided to the Receiving Party within the preceding five

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years.

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(b) Upon disclosure of all the information required by the preceding paragraph, the

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Receiving Party’s Expert may access “HIGHLY CONFIDENTIAL” materials unless and until the

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Designating Party has provided a written objection to the Receiving Party within 5 business days

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of that disclosure. Such objection shall be made by informing the Receiving Party in writing that

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it is invoking the Court’s Informal Discovery Conference Procedure (see the Court’s Standard

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Procedures, paragraph 2, et seq.) Within 2 business days of the Designating Party’s written

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objection, the Parties shall contact the Court to schedule an informal discovery conference with

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attendant submission of letters to the Court. The Designating Party opposing disclosure to the

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Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

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(under the safeguards proposed) outweighs the Receiving Party’s need to disclose “HIGHLY

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CONFIDENTIAL” materials to its Expert. The Receiving Party’s Expert shall cease accessing

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“HIGHLY CONFIDENTIAL” until the Designating Party’s objections are resolved by the Court,

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or as otherwise agreed by the Parties.

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8.

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LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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If a Party is served with a subpoena or a court order issued in other litigation that compels

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party

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must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy

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of the subpoena or court order;

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

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other litigation that some or all of the material covered by the subpoena or order is subject to this

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Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena

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or court order shall not produce any information designated in this action as “CONFIDENTIAL”

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before a determination by the court from which the subpoena or order issued, unless the Party has

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obtained the Designating Party’s permission. The Designating Party shall bear the burden and

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

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

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disobey a lawful directive from another court.

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9.

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LITIGATION

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

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

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action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such information

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

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provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-

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Party from seeking additional protections.

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

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Party’s confidential information in its possession, and the Party is subject to an agreement with the

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Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that some or
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all of the information requested is subject to a confidentiality agreement with a

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Non-Party;

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

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

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description of the information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce the

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Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before a determination

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

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expense of seeking protection in this court of its Protected Material.

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10.

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected

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Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and

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

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MATERIAL

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

When a Producing Party gives notice to Receiving Parties that certain inadvertently

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

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery order

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that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

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

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

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court.

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12.

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MISCELLANEOUS
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

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Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
12.3

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

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court order secured after appropriate notice to all interested persons, a Party may not file in the

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public record in this action any Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant

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to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the

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Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to

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protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant

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to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information

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in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such material

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at the Receiving Party’s discretion. As used in this subdivision, “all Protected Material” includes

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

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of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving
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Party must submit a written certification to the Producing Party (and, if not the same person or

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entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the

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Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

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format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

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Counsel are entitled to retain an archival copy of all e-mail, pleadings, motion papers, trial,

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

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exhibits, expert reports, attorney work product, and consultant and expert work product, even if

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such materials contain or attach Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: __August 16, 2018________

_____/s Julie L. Fieber___________________
Attorneys for Plaintiff

DATED: ___August 16, 2018_______

_____/s Spencer Ririe___________________
Attorneys for Defendant

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PURSUANT TO STIPULATION,

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IT IS SO ORDERED.
Dated:

August 16, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for the

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Eastern District of California on [date] in the case of E. & J. Gallo Winery, et al. v. Strategic

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Materials, Inc., Case No. 1:17-CV-01709. I agree to comply with and to be bound by all the terms of

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this Stipulated Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Stipulated Protective Order to

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any person or entity except in strict compliance with the provisions of this Order.

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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

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_______________________________________ [print or type full address and telephone number] as

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my California agent for service of process in connection with this action or any proceedings related

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to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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EXHIBIT B

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DESIGNATED HOUSE COUNSEL

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for the

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Eastern District of California on [date] in the case of E. & J. Gallo Winery, et al. v. Strategic

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Materials, Inc., Case No. 1:17-CV-01709. I agree to comply with and to be bound by all the terms of

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this Stipulated Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not

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disclose in any manner any information or item that is subject to this Stipulated Protective Order to

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any person or entity except in strict compliance with the provisions of this Order. I further certify

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that I am not involved in competitive decision-making related to recycled glass or cullet, and that I

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am not involved in the provision of legal advice with regards to negotiation with suppliers of glass

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cullet other than the instant litigation. “Competitive decision-making,” as used herein, includes

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negotiations with suppliers regarding the supply of cullet or raw materials for the manufacture of

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cullet.

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even

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if such enforcement proceedings occur after termination of this action.

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

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__________________________ [print or type full address and telephone number] as my California

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agent for service of process in connection with this action or any proceedings related to enforcement

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of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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17

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Printed name: _______________________________

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Signature: __________________________________

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