AGK Sierra de Montserrat, L.P. v. Comerica Bank

Filing 22

AMENDED ORDER TO PROTECT CONFIDENTIAL INFORMATION signed by District Judge Kimberly J. Mueller on 7/22/2016. (Zignago, K.)

1 Timothy J. Gorry, Esq. (State Bar No. 143797)
Edward E. Johnson, Esq. (State Bar No. 241065)
2 THEODORA ORINGHER PC
1840 Century Park East, Suite 500
3 Los Angeles, California 90067-2120
Telephone: [phone]
4 Facsimile: [phone]
5 Attorneys for Plaintiff
AGK Sierra de Montserrat, L.P.
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO DIVISION

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Case No. 2:15-cv-01280-KJM-AC

11 AGK SIERRA de MONTSERRAT,
L.P., a Delaware limited partnership,
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Plaintiff,
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vs.
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COMERICA BANK, a Texas
15 corporation; and DOES 1 through 10,
inclusive,
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Defendants.
17

Honorable Kimberly J. Mueller
AMENDED ORDER TO PROTECT
CONFIDENTIAL INFORMATION
Complaint Filed: April 29, 2015
Trial Date: July 17, 2017

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AMENDED PROTECTIVE ORDER

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Pursuant to the Stipulation fil ed by Pl aintiff AGK Sierra de Montserrat, LP

2 (“AGK”), on the one hand, and Defendant Co erica Bank (“Comerica”), on the other,
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3 the parties agree to this amen ded discovery protective order lim iting the use and
4 dissemination of certain information and

materials designated by the parties as

5 “Confidential Information” (as defined below). Accordingly, this Amended Protective
6 Order (“Order”) shall govern the handling ofdocuments (as defined below), responses
7 to interrogatories, depositions, exhibits a nd all other inform ation exchanged by t he
8 parties in this action through initial disclosu or discovery, or provided by or obtaine
res
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9 from non-parties in this action.
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The Court finds that good cause exists toenter this Order because the parties may

11 obtain through initial disclosures or discovery certain documents and information (e.g.,
12 financial records, etc.), which, if disclosed to the public, would unnecessarily invade
13 the protectable interests of the partie s and nonparties who w ill potentially produce
14 documents or provi de testimony in t his action, including, without lim itation, such
15 parties’ protectable interests in maintaining the confidentiality of trades secrets, internal
16 policies and procedures, and other proprietary business an d financial inform ation.
parties to this action should be allowed to,
17 Moreover, there is no valid reason any of the
18 or need to, release such information to the public. Thus, this inform ation requires
19 special protection from disclosure.
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As set forth below in Section 11, this Stipulated Protective Order does not entitle

21 the parties to file confidential information under seal; Local Rules 141 and 141.1 set
22 forth the procedures that must be followed and the standards that will be applied when a
23 party seeks permission from the court to file material under seal.
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1.

Applicability of This Protective Order. All testim ony, information,

25 documents and things filed with the Cour t or produced by any party or nonpart y in
26 discovery in this action shall be governed by this Order. This Order is entered solely
27 for the purpose of facilitating the exchange of material without unnecessarily involving
28 the Court in the process.
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AMENDED PROTECTIVE ORDER

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2.

Pretrial Order Only. This Order is strictly a pretrial order and does not

2 govern the use or disclosure of information and materials at the trial in this action.
3

3.

Confidential Information. “Confidential Inform ation” shall mean

4 information and materials related to the businesses of the parties or third parties that are
5 unique to the Designating Party (as defined below), that is, not already well known or
6 reasonably discoverable upon research by a person outside of the such Designating
7 Party, including, without limitation, trade secrets as defined by California Civil Code
8 Section 3426, et seq., and such Designating Party’s sales and fina ncial information,
9 compensation information, personnel files,

marketing plans, business plans and

10 strategies, research information, internal policies and procedures, system s, and
11 methods, contracts and other form s, and all information and materials generally
12 regarded as confidential in the industry or business in which the Designating Party is
13 engaged.
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4.

Confidential Information Designation. A party or nonparty may

15 designate as “confidential” any document,

discovery response, m aterial, item,

16 deposition testimony, or i nformation that is otherwise produced through init ial
17 disclosures or in discovery inthis action and which containstrade secret or commercial
18 information, including proprietary business or fi nancial information, nonpublic
19 contracts, or sales information (“Confidential Material”). For purposes of this Order,
20 the party or nonpart y designating testimony, information, things or docum ents as
21 Confidential Material is define d as th e “Designating Party.” The designation of
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22 Confidential Material shall be made only wh counsel of record believes in good faith
23 that the designated material actually qualifies for such protection and shall not be made:
24 (a) to impose burden or delay on an opposing party; or (b) for any tactical or other
25 advantage in litigation.
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5.

Procedure for Designating and Marking Confidential Material.

27 Confidential Material shall be designated and marked as follows:
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a.

A document is to be designated as Confidential Material by stamping or

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AMENDED PROTECTIVE ORDER

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1 writing on it t he following legend, or an equivalent thereof: “CONFIDENTIAL –
2 SUBJECT TO PROTECTIVE ORDER.” The legend shall be placed on the first page
3 of the docu ment and on each page that th e Designating Party clai ms to contain
4 Confidential Material.
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b.

Information or material produced in an electronic medium (e.g., CD, DVD

6 or tape) is to be designated as Confidential Material by marking or labeling the medium
7 container with the legend specified in subsection 5(a) above. If any person or entit y
8 who receives such a designated electronic me dium prints or otherwise transfers to
9 another medium any of the i nformation contained on the electronic medium, any
10 resulting document or other me dium shall be marked by th at person or entity as
11 Confidential Material in accordance with s ubsection 5(a), above, or this subsection
12 5(b).
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c.

A physical item or exhibit is to bedesignated as Confidential Material by

14 affixing to it a label with the legend specified in section 5(a), above.
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d.

A discovery response is to be designated as Confidential Material by

16 placing, on the first page of t he set of re sponses and on each page that contains
17 information that the Designating Party claims to be Confidential Material, the legend
18 specified in subsection 5(a), above, and specifically denoting in the document which
19 response or responses the party deem s to be “Confidential Material” subject to thi s
20 Order.
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e.

Whenever a deposition involves a disclosure of materials or information

22 that any party asserts should be designate d as Confidential Material, the deposition
23 shall be designated in accordancewith this Protective Order. Such designation shall be
24 made at the depositi on and/or within ten (10) days after the Designating Party has
25 received the written copy of the deposition tr anscript from the court reporter. All
26 Confidential Material produced at a deposition will be separately bound from the non27 confidential portions of that deposition.
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6.

Inadvertent Failure to Designate By Producing Party. A Designating

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1 Party that inadvertently fails to mark or deignate an item as Confidential Material shall
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2 have five (5) court days after learning of the inadvertent failure or mistake to correct its
3 failure or mistake. The correction shall be made in writing and shall be accompanied
4 by substitute copies of each item, appropria tely marked as Confidential Materi al.
5 Within two (2) court days of receipt of the substitute copies, the receiving party shall
6 return or destroy the previously unmarked or incorrectly marked items and all copies
7 thereof.
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7.

Challenging Designation of Materials as Confidential. If any party

signated as Confidential Material, the party
9 believes that items have been improperly de
10 may challenge the other party’s designation by serving a written objection upon the
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11 Designating Party. Within five (5) court days after recei ing any written objection, the
12 Designating Party shall notify the challenging party in writing of the ba ses for the
13 asserted designation. The parties must then meet and confer inan effort to resolve their
14 dispute without Court intervention. Nothing in this Order shall prevent any party, after
proper designation with
15 taking the aforementioned steps, from raising the issue of an im
16 the Court by way of an appropriate motion. In the event that an issue concerning the
17 designation of Confidential Material is brought to the Court, the disputed material shall
18 be treated as Confidential Material until such time as the Court renders a decision on
19 such dispute.
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Inadvertent Disclosure of Confidential Materials. In the event of any

ileged documents or information, other than
21 accidental or inadvertent disclosure of priv
hall
22 in a manner authorized by this Order, counselfor the Receiving Party s comply with
23 the obligations set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Compliance
24 with the foregoing shall not prevent the Designating Party from seeking further relief
h
o
25 from this Court or any ot er appropriate court. Any person vi lating this Order may be
26 subject to appropriate sanctions imposed by the Court.
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9.

Protecting Confidential Materials. Each person who recei

ves any

28 Confidential Material shall exercise due andproper care, in connection with the storage,
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1 custody, use, and dissemination of such material, to avoid any intentional or inadvertent
2 disclosure to persons to whom disclosure is not permitted under this Order.
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10.

Use of Information Produced Pursuant to This Order. Confidential

4 Material shall be used by the party or par ties to whom the information is produced
5 solely for the purpose of litigating the present lawsuit between the parties, including
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6 appeals, unless otherwise agreed in wriing by the Designating Party or so ordered by a
7 court. Confidential Material shall not be made available toany person or entity except
8 as authorized under this Order. However, nothing in this Order limits a Designating
9 Party from showing its own Confidential Material to whomever the Designating Party
10 may deem appropriate or using its own

Confidential Material for any purpose .

11 Furthermore, nothing in this Order limits a party’s ability to show items designated by
12 another party as Confidential Material to the Designating Party, including any present
13 officer, director, employee, or representative thereof.
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Confidential Material may be disseminated only to the following persons, all of

15 whom shall be bound by this Protective Order:
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a.

Counsel of record and in-house counsel working on this action on behalf

17 of any party and counsel’s partners and associates;
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b.

Named parties to the action, andthose employees, agents and consultants

19 of those parties necessary for the prosecution or defense of this action;
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c.

Expert witnesses and consultants retained by counsel of record who are

21 directly participating in this action; and
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d.

Paralegals and secretarial and clerical employees of counsel of record who

23 are directly participating in the action, in cluding necessary secretarial, clerical, an d
24 litigation support or copy service personnel assisting such counsel.
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e.

Counsel of record and in-house

counsel working on the civil action

26 entitled Westwood Montserrat, Ltd. v. AGK Sierra de Monserrat, L.P. et al., in the
27 Superior Court of the State of California, in and for the County of Placer, Case No .
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AMENDED PROTECTIVE ORDER

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1 SCV0032447 (the “State Court Action”) on behalf of any party and such counsel’s
2 partners and associates;
f.

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Named parties to the State Court Actio and those employees, agents and
n,

4 consultants of those parties necessary for the prosecution or defense of the State Court
5 Action;
g.

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Expert witnesses and consultants retained by counsel of record who are

7 directly participating in the State Court Action; and
h.
Paralegals and secretarial and clerical employees of counsel of record who
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are directly participating in the State Cou rt Action, including necess ary secretarial,
clerical, and litigation support or copy service personnel assisting such counsel.
Prior to providing any protected information to any person, including any use in
the course of discovery (depositions, re quests for ad missions of authenticity of

documents, etc.) counsel of record shall provi e such person with a copy of this Order
d
and such person shall have to agree to be bound hereunder prior to such disclosure or
use.
11.

Submitting Confidential Materials to the Court. If any Confidential

Material is to be filed with the Court, th e party seeking to file such materi al shall
comply with Local Rules 141 and 141.1 of this Court prior to filing such material with
the Court. The parties agree th they shall avoid, as mu as possible, the inclusion of
at
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Confidential Material in briefs and other documents filed with the Court so as to
minimize the need to seal records or otherwise burden the Court.
12.

Return of Confidential Material. Upon termination of this action and the

expiration of any rights of appeal, counsel for the parties shall, within thirty (30) days,
assemble and return to the producing parties all Confidential Material and all copies of
the same, or shall certify the destruction th ereof to the supplying parties; provided,
however, that outside counsel may retain one copy of each docum ent solely for the
purpose of reference in the event of any di spute concerning the use or disclosure of
information so designated and may retain copi es of such materials to the extent that
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AMENDED PROTECTIVE ORDER

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1 they contain, include, or affect attorney work product of the receiving attorney.
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13.

Modification of Protective Order. This Order is without prejudice to the

3 right of AGK and Comerica to seek modification thereof.
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6 IT IS SO ORDERED
7 DATED: July 22, 2016
UNITED STATES DISTRICT JUDGE

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