California Sportfishing Protection Alliance v. Cameron et al

Filing 25

PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 8/30/2012. (Zignago, K.)

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John Lynn Smith (SBN 154657)
Julia C. Butler (SBN 199133)
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
USA WASTE OF CALIFORNIA, INC. and
STEVE CAMERON

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE, a non-profit corporation,
Plaintiff,

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Case No.: 2:11-CV-02663-WBS-KJN
STIPULATION AND [PROPOSED]
PROTECTIVE ORDER

vs.
USA WASTE OF CALIFORNIA, INC., et al.,
Defendants.

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I.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, financial 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 may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

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Protective Order. 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 from public disclosure and use

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extends 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, as set forth in Section 13.3, below, that
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STIPULATED PROTECTIVE ORDER

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this Stipulated Protective Order does not entitle them to file confidential information under seal;

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

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

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Local Rule 141.1(c), the information requested therein is set forth in Section 2.2 and 2.3 below.
II.

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DEFINITIONS

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2.1

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

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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generated, stored or maintained) or tangible things that constitute commercially sensitive,

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proprietary, financial or trade secret information and qualify for protection under Federal Rule of

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Civil Procedure 26(c) including but not limited to proprietary manuals, proprietary training

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materials, documents reflecting proprietary databases and documents reflecting financial

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information. Any information or items designated as CONFIDENTIAL pursuant to this section need

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protection so that information that a party has created on its own for its own purposes or a party’s

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sensitive financial information are not put forth in the public domain. The need for protection of this

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type of information or items should be addressed by a court order so that the court may enforce

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provisions of this protective order and find a violator in contempt if necessary.

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2.3

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items:

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information (regardless of how it is generated, stored or maintained) or tangible things that constitute

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commercially sensitive, proprietary, financial or trade secret information and qualify for protection

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under Federal Rule of Civil Procedure 26(c) including but not limited to proprietary manuals,

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proprietary training materials, documents reflecting proprietary databases and documents reflecting

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financial information. Any information or items designated as CONFIDENTIAL – ATTORNEYS’

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EYES ONLY pursuant to this section need protection so that information that a party has created on

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its own for its own purposes or a party’s sensitive financial information are not put forth in the

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public domain. The need for protection of this type of information or items should be addressed by a

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court order so that the court may enforce provisions of this protective order and find a violator in

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contempt if necessary.

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2.4

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

as their support staff).
2.5

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 “CONFIDENTIAL—

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ATTORNEYS’ EYES ONLY.”

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2.6

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

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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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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2.7

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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2.8

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

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

entity not named as a Party to this action.
2.10

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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2.11

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).
2.12

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

Material in this action.
2.13

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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2.14

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

“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
III.

SCOPE

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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,

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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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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IV.

DURATION

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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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V.

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DESIGNATING PROTECTED MATERIAL

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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.

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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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 excluding

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

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legend “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” to each page

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

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

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appropriate 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

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material made available for inspection shall be deemed “CONFIDENTIAL—ATTORNEYS’ EYES

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ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the
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Producing Party must determine which documents, or portions thereof, qualify for protection under

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this Order. Then, before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” legend to each page

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that contains Protected Material. If only a portion or portions of the material on a page qualifies for

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

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appropriate markings in the margins).

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

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proceeding, all protected testimony and may request the preparation of a separate transcript of such

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REED SMITH LLP

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

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A limited liability partnership formed in the State of Delaware

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material. In addition, a Designating Party may designate in writing, within twenty (20) days after

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receipt of discovery responses or a transcript, that specific pages of the transcript or specific

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discovery responses be treated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.”

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(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 or

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

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“CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).

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5.3

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

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information or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon correction of a designation, the Receiving Party

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must make reasonable efforts to assure that the material is treated in accordance with the provisions

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of this Order.
VI.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

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

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. A Party that elects to initiate a challenge to a Designating Party’s

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confidentiality designation must do so in good faith and must begin the process by conferring

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directly with counsel for the Designating Party. In conferring, the challenging Party must explain

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the basis for its belief that the confidentiality designation was not proper and must give the

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Designating Party an opportunity to review the designated material, to reconsider the circumstances,

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

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challenging Party may proceed to the next stage of the challenge process only if it has engaged in

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this meet and confer process first.

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6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and serve a

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motion under Civil Local Rule 230 or 251 as appropriate (and in compliance with Civil Local Rule

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141, if applicable) that identifies the challenged material and sets forth in detail the basis for the

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

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

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that sets forth with specificity the justification for the confidentiality designation that was given by

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the Designating Party in the meet and confer dialogue.

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

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Party. Accordingly, in making or opposing any motion relating to the designation of confidential

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information, the party seeking to maintain a document as confidential shall bear the burden of

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showing specific prejudice or harm will result if no protective order is granted. Until the Court rules

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on the challenge, all parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation.

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VII.

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ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

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 13 below (FINAL

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DISPOSITION).

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

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by 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:

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

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

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this litigation;

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(b) House Counsel, as well as the officers, directors, and employees to whom it is reasonably
necessary to disclose the information for this litigation;
(c) Individual parties or officers or employees of a party, to the extent deemed necessary by
counsel for the prosecution or defense of this litigation;

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(d) 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 Agreement

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to Be Bound” (Exhibit A);

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(e) the Court, Court personnel, and court reporters;

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(f) professional jury or trial consultants, and Professional Vendors to whom disclosure is

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

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to Be Bound” (Exhibit A);

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(g) during their depositions, witnesses in the action to whom disclosure is reasonably
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order; and,
(h) 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.
VIII

Disclosure of “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or
Items.

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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In the absence of prior written permission from the Designating Party or an order by the

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Court, documents designated as “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” shall not be

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disclosed to any person other than Outside Counsel of Record, House Counsel or the Court, Court

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personnel or court reporters.

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IX.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION
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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” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” that Party must:

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(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
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(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.
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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” or

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“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” before a determination by the court from which

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

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Designating Party shall bear the burden and expense of seeking protection in that court of its

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confidential material – and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this action to disobey a lawful directive from another court.

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

X.

THIS LITIGATION

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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(a)

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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 “CONFIDENTIAL—ATTORNEYS’ EYES

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ONLY.” Such information produced by Non-Parties in connection with this litigation is protected

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

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as prohibiting a Non-Party from seeking additional protections.
(b)

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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:
(1)

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promptly notify in writing the Requesting Party and the Non-Party that

some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the Stipulated

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

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description of the information requested; and
(3)

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make the information requested available for inspection by the Non-

Party.
(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 by

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the court.1 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of

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seeking protection in this court of its Protected Material.

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XI.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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REED SMITH LLP

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

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A limited liability partnership formed in the State of Delaware

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

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

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inform the person or persons to whom unauthorized disclosures were made of all the terms of this

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

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Be Bound” that is attached hereto as Exhibit A.

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XII.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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

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

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are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to

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modify whatever procedure may be established in an e-discovery order that provides for production

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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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

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the attorney-client privilege or work product protection, the parties may incorporate their agreement

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in the stipulated protective order submitted to the court.

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1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party
and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.

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XIII. MISCELLANEOUS

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13.1

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Right to Further Relief. Nothing in this Order abridges the right of any Party to seek

its modification by the court in the future.
13.2

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

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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 by

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this Protective Order.
13.3

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A limited liability partnership formed in the State of Delaware

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

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a 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

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Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

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issue. Pursuant to Civil Local Rule 141, a sealing order will issue only upon a request establishing

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that the 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

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pursuant to Civil Local Rule 141 is denied by the court, then the Receiving Party may file the

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information in the public record pursuant to Civil Local Rule 141 unless otherwise instructed by the

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court.

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XIV. FINAL DISPOSITION

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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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As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
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by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,

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abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected

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Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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

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

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copies that contain or constitute Protected Material remain subject to this Protective Order as set

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forth in Section IV (DURATION).

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: August 29, 2012

LAW OFFICES OF ANDREW PACKARD

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/s/ Erik Roper
Andrew Packard
Erik Roper
Attorneys for Plaintiff California Sportfishing
Protection Alliance

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DATED: August 29, 2012

REED SMITH LLP

By

/s/ Julia C. Butler
John Lynn Smith
Julia C. ButlerAttorneys for Defendants USA Waste
of California, Inc. and Steve Cameron

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ORDER

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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The parties’ proposed Stipulated Protective Order is HEREBY APPROVED, with one
modification noted in bold in paragraph 6.3. Moreover, the court does not retain jurisdiction to

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resolve disputes over the Stipulated Protective Order after final disposition of this case. See Local
Rule 141.1(f).
IT IS SO ORDERED.
Date: 8/30/2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
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STIPULATED PROTECTIVE ORDER

US_ACTIVE-110439510.2-JBUTLER-348112-11035

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 California Sportfishing

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Protection Alliance. v. USA Waste of California, et al., 2:11-CV-02663-WBS-KJN. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order and I understand

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

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

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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

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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: _________________________________
City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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[printed name]

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Signature: __________________________________

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[signature]

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ad4mc0d
– 15 –
STIPULATED PROTECTIVE ORDER

US_ACTIVE-110439510.2-JBUTLER-348112-11035