Marshall v. AT&T Mobility LLC et al

Filing 89

PROTECTIVE ORDER signed by Judge Morrison C. England, Jr. on 8/7/2012. (Zignago, K.)

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S. Shane Sagheb (State Bar No. 109878)
[e-mail]
CROWELL & MORING LLP
515 S. Flower Street, 40th Floor
Los Angeles, CA 90071-2258
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
AT&T Mobility Services LLC
Joel R. Bryant
[e-mail]
GREEN BRYANT & FRENCH LLP
1230 Columbia Street, Suite 1120
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRANDON MARSHALL, et al.

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Plaintiff,

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v.

Case No. 2:11-CV-02310-MCE-GGH
Hon. Morrison C. England, Jr.
PROTECTIVE ORDER

AT&T MOBILITY SERVICES
LLC, and DOES 1-100,

Action Filed:

August 31, 2011

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Defendants.

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PROTECTIVE ORDER;
CASE NO. 2:11-CV-02310-MCE-GGH

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All the parties to this action having requested that the Court issue a

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protective order to protect the confidentiality of nonpublic and competitively-

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sensitive information that may need to be disclosed to adversary parties in

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connection with discovery in this case pursuant to Fed. R. Civ. P. 26(c), and to

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guard against the waiver of attorney-client privilege and work product protection

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pursuant to Fed. R. Evid. 502(d), the parties having agreed to the following terms,

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and the Court having found that good cause exists for issuance of an appropriately-

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tailored protective order governing the pre-trial phase of this action, it is therefore

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hereby:

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ORDERED that any person subject to this Order – including without

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limitation the parties to this action, their representatives, agents, experts and

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consultants, all third parties providing discovery in this action, and all other

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interested persons with actual or constructive notice of this Order – shall adhere to

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the following terms, upon a possible penalty of contempt:

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1.

Any person subject to this Order who receives from any other person

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any “Discovery Material” (i.e., information of any kind provided in the course of

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discovery in this action) that is designated as “Confidential” pursuant to the terms

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of this Order shall not disclose such Confidential Discovery Material to anyone

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else except as expressly permitted hereunder.

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2.

The person producing any given Discovery Material may designate as

Confidential such portion of such material as consists of:
a.

previously nondisclosed financial information (including

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without limitation profitability reports or estimates, percentage fees, design fees,

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royalty rates, minimum guarantee payments, sales reports and sale margins);

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b.

previously nondisclosed material relating to ownership or

control of any nonpublic company;
c.

previously nondisclosed business plans, product development

information, or marketing plans;
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d.

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confidential business information and communications

regarding employee compensation, time records, training and work histories;
e.

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any information of a personal or intimate nature regarding any

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individual, including personnel files, compensation data, or email and telephone

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communications; or
f.

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any other category of information hereinafter given confidential

status by the Court.
3.

With respect to the Confidential portion of any Discovery Material

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other than deposition transcripts and exhibits, the producing person or that person’s

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counsel may designate such portion as “Confidential” by stamping or otherwise

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clearly marking as “Confidential” the protected portion in a manner that will not

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interfere with legibility or audibility, and by also producing for future public use

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another copy of said Discovery Material with the confidential information

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redacted. With respect to deposition transcripts and exhibits, a producing person or

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that person’s counsel may indicate on the record that a question calls for

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Confidential information, in which case the transcript of the designated testimony

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shall be bound in a separate volume and marked “Confidential Information

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Governed by Protective Order” by the reporter.

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4.

If at any time prior to the trial of this action, a producing person

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realizes that some portion[s] of Discovery Material that that person previously

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produced without limitation should be designated as Confidential, he may so

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designate by so apprising all parties in writing, and such designated portion[s] of

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the Discovery Material will thereafter be treated as Confidential under the terms of

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this Order.

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5.

No person subject to this Order other than the producing person shall

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disclose any of the Discovery Material designated by the producing person as

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Confidential to any other person whomsoever, except to:

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a.

the parties to this action;
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b.

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counsel retained specifically for this action, including any

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paralegal, clerical and other assistant employed by such counsel and assigned to

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this matter;
c.

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as to any document, its author, its addressee, and any other

person indicated on the face of the document as having received a copy;
d.

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any witness who counsel for a party in good faith believes may

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be called to testify at trial or deposition in this action, provided such person has

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first executed a Non-Disclosure Agreement in the form annexed as Exhibit A

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hereto;
e.

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any person retained by a party to serve as an expert witness or

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otherwise provide specialized advice to counsel in connection with this action,

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provided such person has first executed a Non-Disclosure Agreement in the form

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annexed as Exhibit A hereto;

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f.

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this action; and

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g.

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stenographers engaged to transcribe depositions conducted in

the Court and its support personnel.

The Court and its

supporting personnel are not required to execute a Non-Disclosure Agreement.
6.

Prior to any disclosure of any Confidential Discovery Material to any

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person referred to in subparagraphs 5(d) or 5(e) above, such person shall be

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provided by counsel with a copy of this Protective Order and shall sign a Non-

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Disclosure Agreement in the form annexed as an Exhibit hereto stating that that

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person has read this Order and agrees to be bound by its terms. Said counsel shall

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retain each signed Non-Disclosure Agreement, hold it in escrow, and produce it to

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opposing counsel either prior to such person being permitted to testify (at

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deposition or trial) or at the conclusion of the case, whichever comes first.

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7.

All Confidential Discovery Material filed with the Court, and all

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portions of pleadings, motions or other papers filed with the Court that disclose

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such Confidential Discovery Material, shall be filed under seal with the Clerk of
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the Court and kept under seal until further order of the Court. The parties will use

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their best efforts to minimize such sealing.

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8.

Any party who either objects to any designation of confidentiality, or

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who, by contrast, requests still further limits on disclosure (such as “attorneys’

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eyes only” in extraordinary circumstances), may at any time prior to the trial of this

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action serve upon opposing counsel a written notice stating with particularity the

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grounds of the objection or request. If agreement cannot be reached promptly,

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counsel for all affected persons will convene a joint telephone call with the Court

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to obtain a ruling.

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9.

All persons are hereby placed on notice that the Court is unlikely to

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seal or otherwise afford confidential treatment to any Discovery Material

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introduced in evidence at trial, even if such material has previously been sealed or

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designated as Confidential. The Court also retains discretion whether to afford

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confidential treatment to any Confidential Document or information contained in

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any Confidential Document submitted to the Court in connection with any motion,

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application, or proceeding that may result in an order and/or decision by the Court.

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10.

Each person who has access to Discovery Material that has been

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designated as Confidential shall take all due precautions to prevent the

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unauthorized or inadvertent disclosure of such material.

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11.

If, in connection with this litigation, a party inadvertently discloses

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information subject to a claim of attorney-client privilege or attorney work product

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protection (“Inadvertently Disclosed Information”), such disclosure shall not

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constitute or be deemed a waiver or forfeiture of any claim of privilege or work

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product protection with respect to the Inadvertently Disclosed Information and its

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subject matter.

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12.

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If a disclosing party makes a claim of inadvertent disclosure, the

receiving party shall, within five business days, return or destroy all copies of the

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Inadvertently Disclosed Information, and provide a certification of counsel that all

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such information has been returned or destroyed.

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Within five business days of the notification that such Inadvertently

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Disclosed Information has been returned or destroyed, the disclosing party shall

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produce a privilege log with respect to the Inadvertently Disclosed Information.

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14.

The receiving party may move the Court for an Order compelling

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production of the Inadvertently Disclosed Information. The motion shall be filed

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under seal, and shall not assert as a ground for entering such an Order the fact or

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circumstances of the inadvertent production.

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15.

The disclosing party retains the burden of establishing the privileged

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or protected nature of any Inadvertently Disclosed Information. Nothing in this

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Order shall limit the right of any party to request an in camera review of the

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Inadvertently Disclosed Information.

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16.

This Protective Order shall survive the termination of the litigation.

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Within 30 days of the final disposition of this action, all Discovery Material

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designated as “Confidential,” and all copies thereof, shall be promptly returned to

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the producing person, or, upon permission of the producing person, destroyed.

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17.

This Court shall retain jurisdiction over all persons subject to this

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Order to the extent necessary to enforce any obligations arising hereunder or to

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impose sanctions for any contempt thereof.

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Dated: August 7, 2012
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MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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