Dorken v. Demilec, Inc., et al.

Filing 60

AGREED CONFIDENTIALITY AND NON-DISCLOSURE PROTECTIVE ORDER signed by Magistrate Judge Craig M. Kellison on 3/8/17. (Kaminski, H)

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RYAN & LIFTER
Jill J. Lifter, State Bar No. 120832
2000 Crow Canyon Pl., Suite 400
San Ramon, CA 94583
[e-mail]
[phone] / 884-2090 (fax)
LYDECKER|DIAZ
Alex Tirado-Luciano, pro hac vice
1221 Brickell Avenue
19th Floor
Miami, Fl 33131
[phone] / [phone] (Fax)
[e-mail]

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Attorney(s) for Defendant,
DEMILEC, INC.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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H. BRAD DORKEN,

CASE NO.: 2:15-CV-01628-TLN-CMK

Plaintiff,

AGREED CONFIDENTIALITY AND
NON-DISCLOSURE PROTECTIVE
ORDER

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vs.

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DEMILEC, INC., Et Al.

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Defendants.
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THIS MATTER came to be heard upon the agreement and stipulation of the parties, the

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Court having reviewed said agreement and stipulation and being otherwise fully advised in the

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premises, does hereby finds as follows:

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A.

Plaintiff, H. Brad Dorken (hereinafter “Plaintiff”), and Defendant, Demilec Inc.,

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(hereinafter “Defendant”), hereby stipulate to the following provisions regarding

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confidentiality of materials pursuant to Fed. R. Civ. P. 26(c), and request that the

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Court enter this Protective Order.

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AGREED CONFIDENTIALITY AND NON-DISCLOSURE PROTECTIVE ORDER

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B.

Discovery and trial in the above-captioned matter will require production of

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documents and testimony that contain trade secret or other confidential information

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requiring protection against unrestricted disclosure and use.

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C.

In the absence of a protective order governing the production and protection from

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disclosure of such information, the parties and the Court may be required to devote

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an undue amount of time and effort to issues regarding the confidentiality of specific

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information produced in discovery.

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D.

The parties have shown good cause for the entry of the following order pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure.

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It is therefore ORDERED AND ADJUDGED as follows:
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“Document” or “documents” means information, recordation and storage media

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of any kind, including, but not limited to, written, photographic, audio, video, magnetic,

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electronic, optical, or other media. This definition also includes, but is not limited to, written,

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audio, or video productions of oral statements or events; answers to requests for documents in

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lieu of submission of documents; and original versions and reproductions by whatever means.

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2.

The term “Producing Party” includes any party and any nonparty who produces

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information or documents incident to discovery in these proceedings, including, but not limited

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to, Berkeley Analytical.

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3.

The term “these proceedings” means the proceeding designated in the caption to

this Order and all appeals, interlocutory proceedings and collateral or ancillary proceedings.
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The term “Parties” means the Plaintiff and Defendant.

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The term “Confidential Information” means any information or document

produced by a Producing Party that in good faith the Producing Party believes constitutes a trade
secret or other confidential or proprietary business, technical or financial information subject to
protection under Rule 26(c) of the Federal Rules of Civil Procedure. The term also encompasses
any other information the disclosure of which is likely to have the effect of causing significant
competitive harm to the Producing Party or party from which the information was obtained.
Under no circumstances will “Confidential Information” include any information or documents

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obtained by a Party or its counsel from any source outside of this Case, including, but not limited

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to, by prior disclosure of a Party or its agents, representatives or employees. No Party or third

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party shall make the “Confidential Information” designation over documents or information it

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knows to have been so previously disclosed.

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6.

Confidential Information shall be classified as either “CONFIDENTIAL” or

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“FOR COUNSEL ONLY” by the Producing Party, whether it be a document, information

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contained in a document, information revealed during a deposition, information revealed in an

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interrogatory answer, information revealed in response to a non-party subpoena, or otherwise.

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Information or material which is available to the public, including catalogues, advertising

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materials, and the like, shall not be deemed “Confidential Information.”
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Documents produced in this action may be designated by any party or third party

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as Confidential Information by marking each page of the document so designated as either

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“CONFIDENTIAL” or “FOR COUNSEL ONLY.”

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8.

All Confidential Information produced or exchanged by the parties or by third

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parties in the court of this proceeding shall be used solely for the purpose of conducting these

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proceedings and for no other purpose whatsoever, and shall not be disclosed to any person

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except in accordance with the terms of this Order.

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9.

Confidential Information classified as “CONFIDENTIAL” shall not be disclosed

or communicated to anyone other than the following persons:

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a. The Parties, including their insurers, employees, officers, and directors,

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provided that such persons execute a copy of the Agreement To Be Bound by

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and Comply with Protective Order in the form attached as Exhibit A prior to
any disclosure.

A copy of the signed Agreement To Be Bound by and

Comply with Protective Order must be retained by counsel for the party
making such disclosure so that it may be shown to counsel for the Producing
Party if the Producing Party so requests;
b. Attorneys of record for the parties in this proceeding including the respective
partners, of counsel, associates and employees of such attorney to whom it is

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necessary that the material be shown for purposes of this proceeding;

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c. In-house counsel for the respective Parties, including necessary secretarial,

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clerical and litigation support or copy service personnel assisting such

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counsel;

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d. Independent experts and consultants retained by a party to testify or perform

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other services in connection with these proceedings, provided that such expert

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or consultant first executes a copy of the Agreement To Be Bound by and

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Comply with Protective Order in the form attached as Exhibit A prior to any

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disclosure. A copy of the signed Agreement To Be Bound by and Comply

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with Protective Order must be retained by counsel for the party making such

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disclosure so that it may be shown to counsel for the Producing Party if the

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Producing Party so requests;

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e. Court reporters in connection with their duties in providing recording and

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transcription services for depositions conducted in connection with these

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proceedings, so long as any portion of recording, transcription, or deposition

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referring or using such document is designated as confidential;

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f. Personnel of any Court, including judges, official reporters, law clerks, and

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other authorized personnel, to the extent necessary for them to perform their

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duties in connection with these proceedings.

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g. Third-party and Party witnesses deposed in this action and their counsel, if

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separate from counsel to the Parties, provided that such witnesses and counsel

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shall be provided copies of this Protective Order prior to or at the outset of the
deposition and that such witnesses, on the record at the deposition, shall be
informed that he, she, or it (and the witness’s counsel, if any), must agree to
be bound by the terms of this Protective Order, and shall be requested to
execute the Agreement To Be Bound by and Comply with Protective Order in
the form attached as Exhibit A prior to any disclosure. A copy of the signed
Agreement To Be Bound by and Comply with Protective Order must be

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retained by counsel for the party making such disclosure so that it may be

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shown to counsel for the Producing Party if the Producing Party so requests.

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10.

Confidential Information classified as “FOR COUNSEL ONLY” shall not be

disclosed or communicated to anyone other than the following persons:

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a. Attorneys of record for the parties in this proceeding including the respective

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partners, of counsel, associates and employees of such attorney to whom it is

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necessary that the material be shown for purposes of this proceeding;

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b. In-house counsel for the respective Parties, including necessary secretarial,

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clerical and litigation support or copy service personnel assisting such

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counsel;

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c. Outside counsel for the Parties’ insurers, provided that such persons execute a

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copy of the Agreement To Be Bound by and Comply with Protective Order in

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the form attached as Exhibit A prior to any disclosure. A copy of the signed

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Agreement To Be Bound by and Comply with Protective Order must be

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retained by counsel for the party making such disclosure so that it may be

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shown to counsel for the Producing Party if the Producing Party so requests;

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d. Independent experts and consultants retained by a party to testify or perform

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other services in connection with these proceedings, provided that (i) no such

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expert or consultant is a director, officer, or employee of any other Party or a

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current employee of entities that are competitors of any Defendant and (ii)

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such expert or consultant first executes a copy of the Agreement To Be Bound

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by and Comply with Protective Order in the form attached as Exhibit A. A
copy of the signed Agreement To Be Bound by and Comply with Protective
Order must be retained by counsel for the party making such disclosure so
that it may be shown to counsel for the Producing Party if the Producing Party
so requests;
e. Court reporters in connection with their duties in providing recording and
transcription services for depositions conducted in connection with these

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proceedings, so long as any portion of recording, transcription, or deposition

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referring or using such document is designated as confidential;

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f. Personnel of any Court, including judges, official reporters, law clerks, and

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other authorized personnel, to the extent necessary for them to perform their

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duties in connection with these proceedings.

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g. Witnesses where at least one of the following conditions applies: (i) the

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witness is a current employee of the Producing Party and Confidential

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Information was produced by the Producing Party; (ii) the attorney taking the

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deposition and showing the witness the Confidential Information represents

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the Producing Party and the Confidential Information was produced by the

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Producing Party; (iii) the witness’s name appears in the Confidential

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Information as a person who has previously seen or had access to the material

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or it is otherwise established that the witness has previously seen or had

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access to the material or knows the information contained within it; (iv) the

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Producing Party has consented on the record of the deposition to the showing

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of the Confidential Information to the witness; (v) if the witness if not an

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employee of the Producing Party, at least ten (10) days before the deposition,

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a Party wishing to show the witness the Confidential Information notifies the

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Producing Party of that intent, with a specific listing of the material to be

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shown and the Producing Party fails to object in writing to such showing

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within a seven (7) day period, but if an objection in writing is made, such

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material will not be shown to the witness until and unless the Party wishing to
show such material to the witness moves for and obtains appropriate relief
from the Court upon good cause shown.
h. Nothing herein shall preclude the attorneys of record from discussing with
their respective clients Confidential Information designated “FOR COUNSEL
ONLY” in the rendition of advice as contemplated by paragraph 20 below, so

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long as the documents and information so designated are not shown to the

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clients unless otherwise allowed by this paragraph 8 and its subparts.

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11.

Any Party or third party may designate deposition testimony as Confidential

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Information by indicating on the record at the deposition that the testimony is Confidential

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Information, along with the appropriate classification, and is disclosed subject to the provisions

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of this Order. The reporter shall mark all copies of the transcript “CONFIDENTIAL: SUBJECT

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TO PROTECTIVE ORDER,” and shall include a notice of the pages and lines of the transcript

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that should be treated as Confidential Information, including the classification.

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a. Any party or third party also may designate information disclosed at such

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deposition as Confidential Information by notifying all of the parties in

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writing within thirty days of receipt of the transcript of the deposition, of the

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specific pages and lines of the transcript that should be treated as Confidential

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Information. Each party shall attach a copy of the written notice to the face of

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each copy of the transcript in his/her possession, custody or control.

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b. If a document that has previously been designated as Confidential

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Information is made an exhibit to a deposition, the excerpts of the deposition

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transcripts discussing such exhibit shall be marked “CONFIDENTIAL,” and

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the list of exhibits included by the reporter with any transcript shall indicate

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which exhibits have been designated as Confidential Information.

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c. If the Court’s rules require the filing of depositions with the Court or if such

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filing is required in a particular instance, any deposition transcript or exhibits
containing Confidential Information shall be marked “CONFIDENTIAL:

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SUBJECT TO PROTECTIVE ORDER” and filed under seal.

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d. It shall be the obligation of the Party seeking protection of deposition

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testimony or exhibits to ensure compliance with the provisions of this

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paragraph 11 and its subparts.

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12.

The failure to challenge the propriety of a designation of Confidential

Information at the time made shall not preclude a subsequent challenge. If counsel for any party

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disagrees with the designation of Confidential Information by a Producing Party, counsel shall

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try first to resolve their dispute informally and in good faith. If counsel cannot resolve the

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dispute within three business days, the objecting party may seek appropriate relief from the

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Court in the form of a discovery motion as provided in this jurisdiction’s Local Rule 251. The

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information that is the subject of dispute or motion under this paragraph shall be treated as

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Confidential Information pending resolution of the objection by the Court and for thirty (30)

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days after any Court order removing a designation of Confidential Information to allow the

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Producing Party to seek appellate review, and while appellate review is pending.
13.

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If counsel for a Party refers to or includes Confidential Information in motions,

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briefs, affidavits or other written pleadings, motions, or material filed with the Court, counsel for

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that party shall give notice of the intent to so use Confidential Information to the Producing

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Party, including the description of the specific Confidential Information to be used, 15 days prior

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to filing such Confidential Information with the Court. This is to allow the Producing Party an

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opportunity to seek a sealing order pursuant to the procedures set forth in this jurisdiction’s

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Local Rule 141. If no such sealing order is sought within 15 days, the Party seeking to file the

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Confidential Information with the Court may do so and not be in violation of this Protective

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Order.

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Confidential Information with the Court shall not file the Confidential Information with the

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Court until the Court has ruled on the request for the sealing order. If the Court enters a sealing

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order, each such written submission shall bear in prominent form on the first page of the

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submission the following legend:

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If a sealing order is sought by the Producing Party, the party seeking to file the

FILED UNDER SEAL; CONTAINS MATERIAL SUBJECT TO A PROTECTIVE
ORDER OF THE COURT WHICH LIMITS DISCLOSURE AND USE. ACCESS
LIMITED TO PERSONS AUTHORIZED BY THE PROTECTIVE ORDER
UNLESS OTHERWISE ORDERED BY THE COURT.

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a. To the extent practicable, counsel filing such written material shall segregate
the portions containing Confidential Information so as to limit the extent to

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which material must be maintained under seal.

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b. Copies of written material containing Confidential Information filed with the

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Court as provided in paragraph 13 may not be provided to any person or

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entity other than those set forth in paragraphs 9 and 10, except that copies of

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such written material may be provided to parties to these proceedings if all

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Confidential Information is first redacted from the copies provided.

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14.

The provisions of this Order, or any designation or failure to designate particular

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information as Confidential Information pursuant to this Order, shall not be construed in any

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other context or proceeding before any other court, agency or tribunal as a waiver or admission

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that such information is or is not confidential or proprietary.
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A Producing Party shall make a good faith effort to designate discovery material

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as confidential at the time of production.

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Producing Party of confidential discovery material, regardless of whether the material was so

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designated at the time of disclosure, shall not be deemed a waiver of a party’s claim of

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confidentiality, as to either a specific document or any information contained therein, and the

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parties shall, upon notice, thereafter treat such discovery material as Confidential Information.

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A receiving party shall make a good faith effort to locate and mark as “CONFIDENTIAL” or

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“FOR COUNSEL ONLY” any copies of such discovery material.

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16.

Inadvertent or unintentional disclosure by any

If information that is subject to a claim of privilege or of protection as trial-

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preparation material is disclosed in discovery, the party making the claim of privilege may notify

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any party that received the information of the claim and the basis for it. After being notified, a

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party must promptly return, sequester, or destroy the specified information and any copies it has
and may not use or disclose the information until the claim is resolved.

Nothing in this

paragraph shall prevent the receiving party from challenging the propriety of the attorney-client
privilege or work product immunity or other applicable privilege or immunity designation by
submitting a written challenge to the Court, although all parties agree not to argue that disclosure
itself constitutes a waiver of any applicable privilege or protection.

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17.

Within thirty (30) days of the conclusion of these proceedings, all Confidential

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Information shall be either: (1) returned to the Producing Party, or (2) destroyed under the

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supervision of counsel of record for the recipient, with a certificate of destruction furnished to

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counsel for the Producing Party. It is the responsibility of the Producing Party to request the

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Party in possession of the Confidential Information to follow the requirements of this paragraph,

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and failure to do so within 60 days after the conclusion of this lawsuit shall constitute a waiver

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by the Producing Party of the requirements of this paragraph.

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18.

The obligations imposed by this Order shall remain in effect after these

proceedings have concluded.
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Nothing in this Order may be construed to restrict any Party’s right to challenge

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the admissibility or use of Confidential Information on any ground other than confidentiality,

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including but not limited to competence, relevance, or privilege (other than trade secret

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privilege).

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20.

This Order shall not bar any attorney of record in these proceedings in the course

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of rendering advice to his client with respect to these proceedings from conveying to any party to

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these proceedings his general evaluation of any Confidential Information produced or exchanged

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in these proceedings; provided, however, that in rendering such advice and otherwise

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communicating with his/her client, the attorney shall not disclose the specific contents of any

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Confidential Information produced by another party or third party which disclosure would be

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contrary to the terms of this Order.

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21.

If Confidential Information in the possession of a Party is sought by subpoena or

any other form of compulsory process of any court, administrative or legislative body, or of any
person or tribunal purporting to have authority to seek such Confidential Information by
compulsory process, the Party to whom the process is directed shall promptly give written notice
of such process to the Party designating the information as confidential (the “Designating
Person”), cooperate to the extent necessary to permit the Designating Person to quash such
process, and shall not make production of such information until 10 days after the Designating
Person has received written notice of such process as required herein (unless otherwise ordered

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to do so by the court, administrative or legislative body, in which case the Party to whom such

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process is directed shall provide the Designating Person as much notice as reasonably possible

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while not violating such order).

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If any Confidential Information is disclosed to any person other than in a manner

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authorized by this Protective Order, the Party responsible for the disclosure or knowledgeable of

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such disclosure shall, upon discovery of the disclosure, immediately inform the Producing Party

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of all facts pertinent to the disclosure that, after due diligence and prompt investigation, are

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known to the Party responsible for the disclosure or knowledgeable of the disclosure (including,

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without limitation, the name, address, and employer of the person to whom the disclosure was

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made), and shall immediately make all reasonable efforts to prevent further disclosure by each

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unauthorized person who received such information. The Producing Party shall be entitled to

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seek all remedies available under the law.

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23.

In the event that this action is transferred to another court, the Protective Order

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will remain in full force and effect. The Parties agree to present this Protective Order (or another

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protective order mutually agreed by the Parties) to the transferee court for entry as necessary.

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24.

In the event additional parties join or are joined in this action, they shall not have

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access to any Confidential Information until the newly-joined party or its counsel has executed

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and, at the request of any Party, filed with the Court, its agreement to join and be fully bound by

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this Protective Order.

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Dated: March 9, 2017

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FOR PLAINTIFF H. BRAD DORKEN

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/s/ James T. Phillips
Cantey Hangar, LLP
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
[phone] / [phone] (fax)

Respectfully submitted,

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/s/ Wayne H. Maire
Maire & Deedon
Post Office Drawer 994607
Redding, California 96099
[phone] / [phone] (fax)

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FOR DEFENDANT DEMILEC, INC.
/s/ Alex Tirado-Luciano
Lydecker | Diaz
1221 Brickell Avenue
19th Floor
Miami, Florida 33131
[phone] / [phone] (fax)

/s/ Jill J. Lifter
Ryan & Lifter
2000 Crow Canyon Pl.
Suite 400
San Ramon, California 94583
[phone] / [phone] (fax)

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DONE AND ORDERED this 8th day of March, 2017.

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EXHIBIT “A”

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

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H. BRAD DORKEN,

CASE NO.: 2:15-CV-01628-TLN-CMK

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Plaintiff,

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vs.

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DEMILEC, INC., Et Al.

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Defendants.
____________________________________/

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AGREEMENT TO BE BOUND BY AND COMPLY WITH PROTECTIVE ORDER

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1.

I have been advised by counsel for a party in the captioned proceedings that it will be

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necessary for me to receive access to information that has been designated as Confidential

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Information pursuant to a protective order in the proceedings.

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2.

I have been furnished and have reviewed a copy of the Protective Order Governing

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Confidentiality of Documents and Information (the “Protective Order”) and counsel has further

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informed me of the obligations that it imposes upon those who receive Confidential Information.

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I understand that the Protective Order, among other things, prohibits the use of any information

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designated as confidential for any purpose other than these proceedings, and further that I am

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prohibited from disclosing Confidential Information (or any copies, extracts, summaries or

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information otherwise derived from such information) to any other person except as specifically

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provided for in the Protective Order.

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3.

In consideration of my being furnished Confidential Information, I agree to be bound

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by the terms of the Protective Order and to comply with those terms. I further acknowledge and

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agree that the terms of the Protective Order are enforceable against me as a contract by any party

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both during and after the conclusion of this proceeding. I submit to the jurisdiction of the United

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States District Court for the Eastern District of California for the purpose of ensuring compliance

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with the Protective Order.

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Date: _________________

Signature: _____________________
Type or Print
Name: ________________________

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