Bylin Heating Systems, Inc. v. Thermal Technologies, Inc.

Filing 38

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 11/14/12. (Manzer, C)

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DOWNEY BRAND LLP
DALE A. STERN (Bar No. 131108)
JOHN C. MCCARRON (Bar No. 225217)
ELIZABETH B. STALLARD (Bar No. 221445)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs/Counter-Defendants
BYLIN HEATING SYSTEMS, INC. and ROOF
ICE MELT SYSTEMS, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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BYLIN HEATING SYSTEMS, INC., a
California corporation, doing business as
BYLIN ENGINEERED SYSTEMS, and
ROOF ICE MELT SYSTEMS,
INCORPORATED, an Oregon corporation,

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v.
THERMAL TECHNOLOGIES, INC., a
Utah corporation; and DOES 1 through 10,
inclusive,

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STIPULATED PROTECTIVE ORDER

Plaintiffs,

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Case No. 2:11-cv-01402-KJM-KJN

Defendants.
AND RELATED COUNTER-CLAIMS

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Pursuant to Local Rule 141.1, Defendant THERMAL TECHNOLOGIES, INC., a Utah

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corporation (“THERMAL”) and Plaintiffs BYLIN HEATING SYSTEMS, INC., a California

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corporation, doing business as BYLIN ENGINEERED SYSTEMS (“BYLIN”) and ROOF ICE

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MELT SYSTEMS, INC., an Oregon Corporation (“RIMS”) (collectively referred to as the

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1288471.1

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STIPULATED PROTECTIVE ORDER

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“Parties”), by and through their respective attorneys of record, stipulate to entry of the following

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Stipulated Protective Order (“Protective Order”) for the production of confidential information

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and records requested in discovery in this action.

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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

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disclosure and from use for any purpose other than prosecuting this litigation would be warranted.

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Pursuant to Local Rule 141.1(c)(3), the need for protection should be addressed by Court order,

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rather than by private agreement, in order to protect the parties’ legitimate interest in the

PURPOSES AND LIMITATIONS

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protection of confidential information from disclosure to third parties, disclosure of extremely

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sensitive information to the parties, and also to avoid the substantially increased costs and

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burdens of discovery that would result in the absence of an order, including potential discovery

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disputes and motions that would certainly result in the absence of such an order as the case moves

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forward. Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order.

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

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disclosures or responses to discovery and that the protection it affords extends only to the limited

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information or items that are entitled under the applicable legal principles to treatment as

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confidential. The parties further acknowledge, as set forth in Section 5 below, that this Stipulated

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Protective Order creates no entitlement to file confidential information under seal; Civil Local

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Rule 141 sets forth the procedures that must be followed and reflects the standards that will be

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

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2.

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(a) “Party” and/or “Parties” means BYLIN, RIMS and THERMAL, including all of their

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respective officers, directors, employees, consultants, retained experts, and outside counsel (and

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their support staff).

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DEFINITIONS

(b) “Counsel” means an attorney retained to represent any Party in this action, and the
legal, paralegal, secretarial, technical and/or other assistants that are employed by such Counsel.
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STIPULATED PROTECTIVE ORDER

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(c) “Discovery Material” means any information, document, tangible thing, response to

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discovery requests, deposition testimony or transcript, and any other similar materials, or portions

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thereof. Caveat: Discovery Material produced prior to the date of this Stipulated Protective

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Order and Non-Disclosure Agreement is not subject to the instant Protective Order.

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(d) “Designating Party” means a Party or Non-Party that designates Discovery Material

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produced in this action as “CONFIDENTIAL INFORMATION” or “ATTORNEYS’ EYES

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ONLY INFORMATION.”

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(e) “Producing Party” means a Party or Non-Party that produces or otherwise makes
available Discovery Material in this action.

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(f) “Receiving Party” means a Party that receives Discovery Material from a Producing
Party.

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(g) “CONFIDENTIAL INFORMATION” is defined as information that is confidential

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and/or implicates common law and statutory privacy, proprietary business, commercial, and/or

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trade secret interests of the Parties as determined in good faith by the attorneys representing the

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designating Party.

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(h) “ATTORNEYS’ EYES ONLY INFORMATION” is defined herein as information

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that is extremely sensitive “CONFIDENTIAL INFORMATION,” the disclosure of which to

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another Party or Non-Party would create a substantial risk of serious harm that cannot be avoided

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by less restrictive means.

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(i) “Protected Material” means any Discovery Material and any copies, abstracts,

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summaries, or information derived from such Discovery Material, and any notes or other records

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embodying or disclosing the contents of such Discovery Material, that is designated as

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“Confidential Information” or “Attorneys’ Eyes Only” as set forth herein.

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(j) “Expert” or “Experts” means an expert and/or independent consultant actually

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consulted, retained and/or employed to advise or to assist Counsel in the preparation and/or trial

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of this action and who is not a Party, or employed by any Party or affiliate of any Party, and its

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technical, secretarial, and other clerical assistants who are not employed by a Party, to whom it is

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necessary or useful to disclose Protected Material for the purpose of this action. “Expert” or
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STIPULATED PROTECTIVE ORDER

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“Experts” shall not include any individuals who were, currently are, or may become an employee

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of any Party or affiliate of any Party.

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(k) “Qualified Recipient” means Party, Counsel, Receiving Party, Expert, Court and its

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employees, Stenographic Reporters who are engaged in proceedings necessarily incident to the

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conduct of this action, Mediators and/or Arbitrators, and Professional Vendors.

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(l) “Non-Party” or “Non-Parties” means any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this action.

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(m) “Professional Vendors” means persons or entities that provide litigation support

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

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organizing, storing, retrieving data in any form or medium; etc.) and their employees and

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subcontractors.

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3.

DESIGNATION OF PROTECTED MATERIAL

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(a)

Any Discovery Material in this action that is asserted by a Designating Party to

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contain or constitute CONFIDENTIAL INFORMATION shall be so designated by such

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Designating Party as follows:

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1. Each page of each document, the front of each disk, and each object that contains

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CONFIDENTIAL INFORMATION shall be marked on its face or otherwise

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marked with the legend “CONFIDENTIAL-SUBJECT TO PROTECTIVE

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ORDER.”

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2. In the case of testimony given in deposition, hearing, or in other pretrial or trial

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proceedings, the Designating Party must identify on the record, before the close of

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the deposition, hearing or other proceeding, all protected testimony. Transcript

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pages containing or constituting CONFIDENTIAL INFORMATION shall be

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separately bound by the certified court reporter and marked “CONFIDENTIAL”

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on each page.

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3. If a Receiving Party wishes to show non-CONFIDENTIAL portions of a document

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or transcript or thing containing CONFIDENTIAL INFORMATION to a person or

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party not described below in Section 4(a), it shall first redact all pages designated
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STIPULATED PROTECTIVE ORDER

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CONFIDENTIAL.

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(b)

Any Discovery Material in this action that is asserted by a Designating Party to

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contain or constitute ATTORNEYS’ EYES ONLY INFORMATION shall be so designated by

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such Designating Party as follows:

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1. Each page of each document, the front of each disk, and each object that contains

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ATTORNEYS’ EYES ONLY information shall be marked on its face or otherwise

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marked with the legend “CONFIDENTIAL – ATTORNEYS’ EYES ONLY –

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SUBJECT TO PROTECTIVE ORDER.”

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2. In the case of testimony given in deposition, hearing, or in other pretrial or trial

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proceedings, the Designating Party must identify on the record, before the close of

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the deposition, hearing or other proceeding, all protected testimony. Transcript

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pages containing or constituting ATTORNEYS’ EYES ONLY information shall

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be separately bound by the certified court reporter and marked “CONFIDENTIAL

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– FOR ATTORNEYS’ EYES ONLY” on each page.

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3. If a Receiving Party wishes to show non-ATTORNEYS’ EYES ONLY portions of

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a document or transcript or thing containing ATTORNEYS’ EYES ONLY

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information to a person or party not described below in Section 4(b), it shall first

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redact all pages designated ATTORNEYS’ EYES ONLY.

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(d)

If timely corrected, an inadvertent failure to designate qualified information does

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not, standing alone, waive the Designating Party’s right to secure protection under this Protective

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Order for such material. Upon timely correction of a designation, the Receiving Party must make

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reasonable efforts to ensure that such designated information is treated in accordance with the

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provisions of this Protective Order.

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4.

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(a) CONFIDENTIAL INFORMATION: Any CONFIDENTIAL INFORMATION

ACCESS TO PROTECTED MATERIAL

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produced in accordance with the provisions of Section 3 above shall be used solely for purposes

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of the prosecution and defense of this action. Unless otherwise ordered by the Court or permitted

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in writing by the Designating Party, a Receiving Party may disclose any information or item
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STIPULATED PROTECTIVE ORDER

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designated CONFIDENTIAL only to:

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(1)

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

Counsel to whom it is reasonably necessary to disclose the information for this action;

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(2)

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the officers, directors, and employees (including in-house Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this action;

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(3)

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

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

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Acknowledgement and Agreement (Exhibit A);

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(4)

the Court and its personnel;

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(5)

court reporters, their staffs, and Professional Vendors to whom disclosure

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is reasonably necessary for this action;

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(6)

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

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reasonably necessary and who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions

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

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be disclosed to anyone except as permitted under this Stipulated Protective Order; and

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(7)

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the author of the document or the original source of the information.

(b) ATTORNEYS’ EYES ONLY Information: Any ATTORNEYS’ EYES ONLY

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information produced in accordance with the provisions of Section 3 above shall be used solely

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for purposes of the prosecution and defense of the above-entitled litigation. Unless otherwise

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ordered by the Court or permitted in writing by the Designating Party, ATTORNEYS’ EYES

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ONLY information may only be disclosed to:

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(1)

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

Counsel to whom it is reasonably necessary to disclose the information for this action;

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(2)

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

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

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Acknowledgement and Agreement (Exhibit A);

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(3)
1288471.1

the Court and its personnel;
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STIPULATED PROTECTIVE ORDER

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(4)

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court reporters, their staffs, and Professional Vendors to whom disclosure

is reasonably necessary for this action;

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(5)

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

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reasonably necessary and who have signed the “Agreement to Be Bound by Protective

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Order” (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions

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

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be disclosed to anyone except as permitted under this Stipulated Protective Order; and

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(6)

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the author of the document or the original source of the information.

(c) Experts. Subject to the provisions of this Protective Order, all Protected Material may

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be disclosed to any Expert who has agreed to be bound by this Protective Order after the Expert

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executes the Acknowledgement and Agreement attached as Appendix A. Counsel or the Parties

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need not identify any of their respective Experts, except pursuant to the exchange of information

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concerning expert witnesses as required by the Federal Rules of Civil Procedure, Local Rules,

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and/or the Court’s orders. When an Expert is disclosed in accordance with the above-referenced

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rules, such disclosure shall also include the production of that Expert’s signed Acknowledgement

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and Agreement.

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(d) Disclosure Pursuant to Consent. Protected Material also may be disclosed to anyone
so authorized by prior written consent of the Designating Party.

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(e) Witnesses. If a document or thing designated as CONFIDENTIAL or ATTORNEYS’

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EYES ONLY refers to the conduct or affairs of a potential witness, Counsel and/or the Parties

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may discuss such conduct or affairs with the witness, but must do so without revealing the

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existence, author or source of such document or thing, except as otherwise permitted in Sections

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4(a) and 4(b).

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5.

HANDLING OF PROTECTED MATERIAL

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(a)

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

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

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this Order.

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STIPULATED PROTECTIVE ORDER

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(b)

Without written permission from the Designating Party or a court order secured

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after appropriate notice to all interested persons, a Party may not file in the public record in this

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

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comply with Local Rule 141. All Protected Material, and any recitations, compilations,

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summaries or abstracts of Protected Material, may only be filed under seal pursuant to a court

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order authorizing the sealing of the specific Protected Material at issue. The Court may, upon a

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properly noticed motion, make any order necessary for the orderly administration of justice

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including ordering that the record or portions of the record be unsealed.

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(c) Hearings. The Parties, if acting in pro se, and/or Counsel shall attempt to agree upon

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procedures to protect at any hearing or arbitration the confidentiality of Protected Material and

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shall, prior to such hearing or arbitration, submit such proposed procedures, including any

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disputes relating thereto, to the arbitrator or the Court for approval or modification.

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(d) Copies and/or Reproductions. Subject to Section 4, above, nothing herein shall restrict

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a Qualified Recipient from making working copies, abstracts, digests and analyses of Protected

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Material for use in connection with this action and such working copies, abstracts, digests and

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analyses shall be deemed to have the same level of protection under the terms of this Protective

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Order. Further, nothing herein shall restrict a Qualified Recipient from converting or translating

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such information into machine-readable form for incorporation in a data retrieval system used in

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connection with this action, provided that access to such information, in whatever form stored or

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reproduced, shall be limited to Qualified Recipients.

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(e) Inadvertent Disclosure. If a Party through inadvertence produces any

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CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY information without

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labeling or marking or otherwise designating it as such in accordance with the provisions of this

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Protective Order, the Producing Party may give written notice to the Receiving Party that the

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document or thing produced is deemed CONFIDENTIAL INFORMATION or ATTORNEYS’

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EYES ONLY and should be treated as such in accordance with the provisions of this Protective

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Order. The Receiving Party must treat such documents or things with the noticed level of

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protection from the date such notice is received. Promptly upon providing such notice to the
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STIPULATED PROTECTIVE ORDER

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Receiving Party, the Producing Party shall provide the Receiving Party with another copy of the

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documents or things that bear the new designation under this Protective Order, at which time the

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Receiving Party shall return the originally-produced documents and things to the Producing Party.

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The Receiving Party’s disclosure, prior to the receipt of notice from the Producing Party of a new

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designation, to persons not authorized to receive such information shall not be deemed a violation

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of this Protective Order. However, the Receiving Party shall make a good faith effort to

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immediately retrieve such information from such persons not authorized to receive such

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information and to obtain an Acknowledgement and Agreement executed by the person to whom

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the disclosure was made. If such efforts are unsuccessful, the Receiving Party shall notify the

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Producing Party of the disclosure and the identity of the person or entity to whom the disclosure

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was made.

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(f) This Protective Order shall apply to any Non-Party from whom discovery may be

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sought and allows such a Non-Party to designate Discovery Material and any other

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information as CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY. A

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copy of this Stipulated Protective Order and Non-Disclosure Agreement shall be served with any

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discovery requests propounded to a Non-Party and/or deposition subpoenas (document, personal

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appearance or both). A signed Acknowledgement and Agreement (Appendix A) shall be returned

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with any documents or information produced from any Non-Party.

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(g) Deposition Transcripts. If such designation is not made at the time of the deposition,

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any transcript containing CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY

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information shall be designated as containing such information by no later than twenty (20) days

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after receiving the deposition transcript. Until this twenty (20) day period lapses, the entirety of

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the deposition transcript shall be treated by all Parties as ATTORNEYS’ EYES ONLY.

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6.

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A Party shall not be obligated to challenge the propriety of a confidentiality designation at

DESIGNATION NOT DETERMINATIVE OF STATUS

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the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The

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designation or failure to designate material as CONFIDENTIAL or ATTORNEYS’ EYES ONLY

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shall not be determinative of that material’s status as Protected Material. All challenges to the
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STIPULATED PROTECTIVE ORDER

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propriety of a confidentiality designation shall first be made in writing by letter or other document

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identifying the specific material challenged and served on all Parties. Within twenty (20) days

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following the receipt of a written challenge, the Designating Party shall serve on all Parties a

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written explanation of the basis for such designation. Thereafter, the Designating Party and the

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Party challenging the designation shall attempt to resolve such challenge in good faith on an

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informal basis.

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If the dispute cannot be informally resolved, the Party challenging the designation may

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file and serve a motion that identifies the challenged material and sets forth in detail the basis for

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the challenge. Each such motion must be accompanied by a competent declaration that affirms

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that the movant has complied with the meet and confer requirements imposed in the preceding

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paragraph and that sets forth with specificity the justification for the confidentiality designation

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that was given by the Designating Party in the meet and confer dialogue. The burden of

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persuasion in any such challenge proceeding shall be on the Designating Party. Any document or

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thing designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall enjoy the protection of

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such designation until the issue relating to the propriety of the designation has been resolved.

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7.

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Nothing in this Protective Order shall abridge the right of any person to seek judicial

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RIGHT TO FURTHER RELIEF

modification or amendment of this Protective Order.

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8.

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This Protective Order shall not be construed as waiving any right to assert a claim of

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RIGHT TO ASSERT OTHER OBJECTIONS

privilege, relevance, or other grounds for not producing Discovery Material.

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9.

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Within ninety (90) days after final termination of this action, each Party shall assemble all

FINAL DISPOSITION

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documents and things furnished and designated by any other Party or Non-Party as containing

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CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY information, and all copies,

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summaries and abstracts thereof, and shall either (a) return such documents and things to the

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Producing Party, or (b) destroy the documents and things. Notwithstanding the foregoing,

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Counsel shall be entitled to retain a single archival copy of documents that include or are derived
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STIPULATED PROTECTIVE ORDER

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from Protected Material and Counsel and Parties may retain copies of any document containing

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information designated as “CONFIDENTIAL” that is referred to in any settlement agreement

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between the Parties. If a Party elects to destroy any documents or things, a Certificate of

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Destruction shall be served on all Counsel within ninety (90) days of final termination of the

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action.

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IT IS SO STIPULATED.

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Dated: November 13, 2012

LOCKE LORD LLP

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By:

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Dated: November 12, 2012

/s/
Krista J. Dunzweiler
M. Taylor Florence
Kristin J. Dunzweiler
Attorneys for THERMAL TECHNOLOGIES,
INC.

DOWNEY BRAND LLP

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By:

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/s/
Elizabeth B. Stallard
Dale A. Stern
John C. McCarron
Elizabeth B. Stallard
Attorneys for BYLIN HEATING SYSTEMS,
INC. and ROOF ICE MELT SYSTEMS, INC.

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ORDER
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IT IS SO ORDERED.

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Date: 11/14/2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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1288471.1

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APPENDIX A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
Bylin Heating Systems, et al. v. Thermal Technologies, Inc.
U.S. District Court – Eastern District of California Case No. 2:11-cv-01402-KJM-KJN

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I, __________________________ declare under penalty of perjury under the laws of the

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State of California that I have read in its entirety the Protective Order in the above-referenced

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lawsuit, and agree to adhere to and be bound by its terms. I hereby submit to the jurisdiction of

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the United States District Court for the Eastern District of California for the purpose of

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enforcement of the Protective Order.

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Date:

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Signature

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Name

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Title

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Address

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City, State, Zip

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Telephone Number

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ad4mc0d
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STIPULATED PROTECTIVE ORDER